Releases of Collateral. (a) Until the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or any portion of the Common Collateral in connection with: (a) an Enforcement Action, (b) a sale pursuant to Section 363 of the Bankruptcy Code, or (c) a disposition of any Collateral that is permitted pursuant to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates. (b) If the Lien of Second Lien Agent in the Common Collateral is to be released pursuant to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable).
Appears in 3 contracts
Samples: Floor Plan First Lien Credit Agreement (B. Riley Principal Merger Corp.), Abl First Lien Credit Agreement (B. Riley Principal Merger Corp.), Note Purchase Agreement (B. Riley Principal Merger Corp.)
Releases of Collateral. Each Borrower may, upon not less than two (2) Business Days’ prior written notice to the Agent, request the Agent to release its security interest in one or more Assets to the extent such release is necessary in connection with:
(a) Until any repurchase or substitution of such Assets pursuant to and in accordance with the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or any portion of the Common Collateral in connection with: (a) an Enforcement Action, Sale and Servicing Agreement;
(b) a sale pursuant to Section 363 any repayment of the Bankruptcy Code, or related Loan; or
(c) any sale of Purchased Policies to a disposition Person that is not an Affiliate of any Collateral GWG Party (each such Person, a “Third Party Buyer”) on arm’s length terms; provided that is permitted no such release pursuant to this clause (c) shall be made unless:
(i) the First Lien Documents Agent receives payment in full and the Second Lien Documents, then any Lien in cash of the Second Lien Agent sales price for such Purchased Policies (the “Sale Price”), which Sale Price is not less than the greater of (A) the Value of such Purchased Policies and (B) the sum of (1) 95% of the aggregate Collateral Balance of such Purchased Policies plus (2) accrued and unpaid Facility Fees and Interest on a principal amount of Advances equal to such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released Balance (calculated by reference to the same extent Facility Rate);
(ii) neither the relevant Seller nor any of its Affiliates receives any consideration for such sale, other than the Sale Price remitted to the Agent pursuant to clause (i);
(iii) each such Purchased Policy is sold by the Life Settlement Borrower or the Titling Trust to such Third Party Buyer without recourse, such that neither the Titling Trust nor the Life Settlement Borrower is required to (A) make or provide any representations, warranties, indemnities or other undertakings of any kind to such Third Party Buyer or any other Person (it being understood and agreed that the Second Lien Agent Seller may make or provide any such representations, warranties, indemnities or other undertakings as necessary or appropriate, so long as neither the Life Settlement Borrower nor the Titling Trust has any liability with respect thereto) or (B) execute any documents other than an assignment agreement between the Life Settlement Borrower or Titling Trust and such Third Party Buyer in a form that has been approved in writing by the Agent; and
(iv) no Borrowing Base Deficiency or other Event of Default or Potential Event of Default has occurred and is continuing or would result therefrom. The release of the Agent’s security interest in any such Asset shall still, be subject to the terms Agent’s receipt of this Agreement, have a security interest all amounts payable by the relevant Seller in connection with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action repurchase or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates.
(b) If the Lien of Second Lien Agent in the Common Collateral is to be released substitution pursuant to the foregoing Sale and Servicing Agreement (in the case of a release pursuant to clause (a)) or from the relevant Obligor pursuant to the related Asset Documents (in the case of a release pursuant to clause (b)) or from the relevant Seller or the Third Party Buyer (in the case of a release pursuant to clause (c)). Upon the written request of the Borrowers following the Agent’s receipt of such amounts, and at the cost and expense of the Borrowers, the Second Lien Agent shall promptly deliver and, if necessary, execute and deliver such release documents and instruments and shall take such further actions documents as the First Lien Representative shall Borrowers may reasonably request to evidence any release for purposes of effectuating such Lien described release. Notwithstanding the foregoing, it is understood and agreed that upon payment in paragraph (a). Until full of all amounts payable by an Obligor under or in respect of an Eligible Loan in accordance with the First Lien Obligations Payment Daterelated Asset Documents, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney security interest in the place collateral securing such Eligible Loan shall automatically be released as and stead of to the Second Lien Agent and extent provided in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)applicable Asset Documents.
Appears in 3 contracts
Samples: Credit and Security Agreement, Credit and Security Agreement (GWG Holdings, Inc.), Credit and Security Agreement (GWG Holdings, Inc.)
Releases of Collateral. (a) Until the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or any portion of the Common Collateral in connection with: (a) an Enforcement Action, Subject to subsection (b) of this Section 12.02, Collateral may be released from the Lien and security interest created by the Security Documents at any time or from time to time in accordance with the provisions of the Security Documents, the Intercreditor Agreements or as provided hereby. The Issuer and the Guarantors will be entitled to a sale release of assets included in the Collateral from the Liens securing the Notes, and the same shall automatically be released from such Liens, and the Collateral Agent and the Trustee shall deliver such evidence of release as the Issuer or a Guarantor at the Issuer’s sole cost and expense, under one or more of the following circumstances:
(i) to enable the Issuer or any of the Guarantors to consummate the disposition of property or assets to the extent not prohibited and otherwise in accordance with Section 4.10; provided, however, that if such property or assets, immediately prior thereto, were subject to any Lien securing any First Priority Lien Obligation and such property or assets continue after such disposition to be subject to a Lien securing any First Priority Lien Obligation, no such release shall occur with respect to such property or assets;
(ii) in respect of the property and assets of a Restricted Guarantor, upon the designation of such Restricted Guarantor as an Unrestricted Subsidiary in accordance with Section 4.07 and the definition of “Unrestricted Subsidiary”; provided, however, that if any property or assets of such Restricted Guarantor, immediately prior thereto, was subject to any Lien securing any First Priority Lien Obligation and such property or assets continue after such designation to be subject to a Lien securing any First Priority Lien Obligation, no such release shall occur;
(iii) in the case of the property and assets of a Restricted Guarantor, upon the release of such Restricted Guarantor from its Guarantee of the Notes;
(iv) pursuant to Section 363 an amendment or waiver in accordance with Article 9 of this Indenture; or
(v) as otherwise required by any Intercreditor Agreement. The Collateral Agent shall execute, deliver or acknowledge any necessary or proper instruments of termination, satisfaction or release prepared by the Bankruptcy Code, or (c) a disposition Issuer of any Collateral that permitted to be released pursuant to this Indenture, the Security Documents or the Intercreditor Agreements. Any execution, delivery or acknowledgement pursuant to this Section 12.02 shall be without recourse to or warranty by the Collateral Agent.
(b) At any time when a Default has occurred and is permitted continuing and the maturity of the Notes has been accelerated (whether by declaration or otherwise) and the Trustee (if not then the Collateral Agent) has delivered a notice of acceleration to the Collateral Agent, no release of Collateral pursuant to the First Lien provisions of this Indenture or the Security Documents and will be effective as against the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will beHolders, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates.
(b) If the Lien of Second Lien Agent in the Common Collateral is to be released pursuant to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Intercreditor Agreements.
Appears in 3 contracts
Samples: Indenture (iHeartCommunications, Inc.), Indenture (Clear Channel Communications Inc), Indenture (Clear Channel Communications Inc)
Releases of Collateral. (a) Until the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or any portion of the Common Collateral in connection with: (a) an Enforcement Action, Subject to subsection (b) of this Section 12.02, Collateral may be released from the Lien and security interest created by the Security Documents at any time or from time to time in accordance with the provisions of the Security Documents, the Intercreditor Agreements or as provided hereby. The Issuer and the Guarantors will be entitled to a sale release of assets included in the Collateral from the Liens securing the Notes, and the same shall automatically be released from such Liens, and the Collateral Agent and the Trustee shall deliver such evidence of release as the Issuer or a Guarantor at the Issuer’s sole cost and expense, under one or more of the following circumstances:
(i) to enable the Issuer or any of the Guarantors to consummate the disposition of property or assets to the extent not prohibited and otherwise in accordance with Section 4.10; provided, however, that if such property or assets, immediately prior thereto, were subject to any Lien securing any First Priority Lien Obligation and such property or assets continue after such disposition to be subject to a Lien securing any First Priority Lien Obligation, no such release shall occur with respect to such property or assets;
(ii) in respect of the property and assets of a Restricted Guarantor, upon the designation of such Restricted Guarantor as an Unrestricted Subsidiary in accordance with Section 4.07 and the definition of “Unrestricted Subsidiary”; provided, however, that if any property or assets of such Restricted Guarantor, immediately prior thereto, was subject to any Lien securing any First Priority Lien Obligation and such property or assets continue after such designation to be subject to a Lien securing any First Priority Lien Obligation, no such release shall occur;
(iii) in the case of the property and assets of a Restricted Guarantor, upon the release of such Restricted Guarantor from its Guarantee of the Notes;
(iv) pursuant to Section 363 an amendment or waiver in accordance with Article IX of this Indenture; or
(v) as otherwise required by any Intercreditor Agreement. The Collateral Agent shall execute, deliver or acknowledge any necessary or proper instruments of termination, satisfaction or release prepared by the Bankruptcy Code, or (c) a disposition Issuer of any Collateral that permitted to be released pursuant to this Indenture, the Security Documents or the Intercreditor Agreements. Any execution, delivery or acknowledgement pursuant to this Section 12.02 shall be without recourse to or warranty by the Collateral Agent.
(b) At any time when a Default has occurred and is permitted continuing and the maturity of the Notes has been accelerated (whether by declaration or otherwise) and the Trustee (if not then the Collateral Agent) has delivered a notice of acceleration to the Collateral Agent, no release of Collateral pursuant to the First Lien provisions of this Indenture or the Security Documents and will be effective as against the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will beHolders, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates.
(b) If the Lien of Second Lien Agent in the Common Collateral is to be released pursuant to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Intercreditor Agreements.
Appears in 2 contracts
Samples: Indenture (Clear Channel Communications Inc), Indenture (Clear Channel Communications Inc)
Releases of Collateral. The Borrower may, upon not less than ten (a10) Until Business Days’ prior written notice to the First Lien Obligations Payment DateAgent, if request the First Lien Agents Agent to release its security interest in one or more Loans to the extent such release is necessary in connection with (i) any repurchase of such Loans pursuant to and in accordance with the Sale and Servicing Agreement, (ii) any sale of such Loans at fair market value on a Lien on all “whole-loan” basis to a party that is not an Affiliate of any Brooke Party or (iii) any portion sale of such Loans to a bankruptcy-remote subsidiary of the Common Collateral Seller or the Parent pursuant to a Term Securitization; provided any such sale or repurchase shall be made pursuant to documentation reasonably satisfactory to the Agent, which documentation (x) shall specify that such sale or repurchase is being made without recourse to the Borrower and without representation or warranty of any kind on the part of the Borrower, other than a representation and warranty that such sale or repurchase is being made free and clear of any Adverse Claim created by the Borrower and (y) shall not impose any liabilities or obligations on the Borrower other than customary obligations necessary to effectuate the transfer of title of the relevant Loans, which obligations the Borrower is then capable of performing. Any sale or repurchase satisfying the requirements specified in the preceding sentence is hereinafter referred to as a “Permitted Sale Transaction”. The release of the Agent’s security interest in any such Loan in connection with: (a) an Enforcement Action, (b) with a sale pursuant to Section 363 of the Bankruptcy Code, or (c) a disposition of any Collateral that is permitted pursuant to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent Permitted Sale Transaction shall still, be subject to the terms satisfaction of this Agreement, the following conditions precedent:
(i) all proceeds arising from such Permitted Sale Transaction have a security interest been (or will be contemporaneously with respect such release) deposited into the Collection Account,
(ii) after giving effect to such release and the deposit of the proceeds of such Common Collateral except referred to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses clause (ai), (bA) no Event of Default, Potential Event of Default or Termination Event shall have occurred and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable lawcontinuing, and (3B) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates.no Program Deficiency would exist;
(biii) If if a Hedge Trigger Event has occurred, the Lien Borrower shall have terminated one or more Hedge Transactions (in whole or in part), such that after giving effect to such termination and all prepayments of Second Lien Agent in the Common Collateral is Advances to be released pursuant made on or prior to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations next Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person aggregate notional amount of the First Lien RepresentativeHedge Transactions is equal to the Hedge Notional Amount Requirement, and all Hedge Breakage Costs associated with full power of substitutionsuch termination have been (or will be, on or prior to the date when such Hedge Breakage Costs are due) paid in full;
(iv) all Exit Fees payable in connection with such release have been (or will be, by the next Payment Date) paid in full;
(v) on or prior to such release, the Borrower shall have deposited into the Collection Account sufficient cash in order to comply with the conditions above; and
(vi) the Agent shall have received all instruments, documents, opinions and other information as its true and lawful attorney-in-fact with full irrevocable power of attorney the Agent may reasonably request in order to confirm (A) the place and stead satisfaction of the Second Lien Agent foregoing conditions and in (B) that such release is being effected pursuant to a Permitted Sale Transaction. Upon the name written request of the Second Lien Borrower following the satisfaction of the conditions precedent specified above, and at the cost and expense of Borrower, the Agent or in shall deliver and, if necessary, execute such instruments and documents as the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, Borrower may reasonably request for the purposes of carrying out the terms of effectuating any release permitted pursuant to this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)2.14.
Appears in 2 contracts
Samples: Credit and Security Agreement (Brooke Corp), Credit and Security Agreement (Brooke Corp)
Releases of Collateral. (a) Until The Liens on the First Lien Obligations Payment Date, if the First Lien Agents release Collateral of this Indenture will no longer secure a Lien on all Series of Securities outstanding under this Indenture or a Supplemental Indenture or any portion other Note Obligations with respect to such Series of Securities, and the right of the Common Holders of such Series of Securities to the benefits and proceeds of the Liens on the Collateral will terminate and be discharged, in connection with: each case, automatically and without the need for any further action by any Person:
(a1) an Enforcement Actionin whole, upon the full and final payment and performance of the Obligations of the Company and the Subsidiary Guarantors with respect to such Series of Securities under the Note Documents;
(b2) a sale in whole, upon Legal Defeasance or Covenant Defeasance of such Series of Securities pursuant to Section 363 Article 8 hereof or upon the satisfaction and discharge of this Indenture with respect to such Series of Securities in accordance with Article 10 hereof;
(3) in whole or in part, as applicable, upon receipt of the Bankruptcy Codeconsent of Holders of the requisite percentage of such Series of Securities in accordance with Article 9 hereof;
(4) in part, or (c) a disposition of as to any Collateral that is permitted pursuant sold, transferred or otherwise disposed of by the Company or any Subsidiary Guarantor in a transaction or other circumstance made in compliance with the applicable Supplemental Indenture and the Note Security Documents at the time of such sale, transfer or disposition;
(5) in whole, with respect to the First Lien Documents and Collateral owned by any Subsidiary Guarantor, upon the Second Lien Documentsrelease of the Subsidiary Guarantee of such Subsidiary Guarantor in accordance with the terms of the applicable Supplemental Indenture; and
(6) in whole, upon the occurrence of an Investment Grade Event with respect to such Series of Securities; provided, however, that in the event that on any subsequent date (the “Reversion Date”) any two of the three Rating Agencies withdraw their Investment Grade rating of the senior, unsecured, long-term debt securities of the Company or downgrade such rating below Investment Grade, then (i) the Company and any Lien Subsidiary Guarantors will be required to secure the Series of Securities with the Second Lien Agent on such Common Collateral within 60 days after the Reversion Date and (ii) will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, thereafter be subject to the terms of this Agreement, have a security interest the Note Documents and the Note Security Documents with respect to future events; provided that clause (i) will not apply to property and other assets released by the proceeds Company under any other subsection of this Section 12.05(a). For the avoidance of doubt, in the event of any such Common Collateral except reinstatement pursuant to clause (i) hereof, (A) no action taken or omitted to be taken by the extent applied Company or any Subsidiary Guarantors after a Release Event and before the Reversion Date will give rise to First Lien Obligations in accordance with Section 5.1); provideda Default, that in each case Event of Default or other breach under this Indenture, the Securities or, if any, the Subsidiary Guarantees and (B) none of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (Company or any DIP FinancingSubsidiary Guarantor will bear any liability for any actions taken or events occurring after a Release Event and before the Reversion Date, as applicable) in accordance with Section 5.1 (it being acknowledged that or any credit bid by either First Lien Agent in actions taken at any foreclosure or other disposition of any Common Collateral time pursuant to any Enforcement Action is deemed contractual obligation arising after a Release Event and before the Reversion Date; provided that all Liens incurred after a Release Event and before the Reversion Date will be classified to be a permanent repayment have been incurred or issued pursuant to the applicable clause of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted definition of “Permitted Lien” in accordance with the applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliatesSupplemental Indenture.
(b) If In addition, the Lien of Second Lien Agent in Collateral Trustee’s Liens on the Common Collateral is to will be released pursuant upon the terms and subject to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described conditions set forth in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person Section 4.1 of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Collateral Trust Agreement.
Appears in 2 contracts
Samples: Indenture (Vistra Corp.), Indenture (Vistra Energy Corp.)
Releases of Collateral. At any time during which no Triggering Event has occurred and is continuing:
(a) Until If (i) any Collateral is to be disposed of in a disposition that is specifically permitted by the First Lien Obligations Payment DateFinancing Documents, if (ii) the First Lien Agents release Borrower delivers a Lien on all or any portion certificate to such effect to the Second Priority Collateral Agent and the Senior Collateral Agent at least three Business Days before the date of the Common requested release, and (iii) neither the Senior Collateral in connection with: (a) an Enforcement Action, (b) a sale pursuant to Section 363 Agent nor the Second Priority Collateral Agent objects before the date of the Bankruptcy Coderequested release that such disposition is prohibited by the Senior Financing Documents or the Second Priority Financing Documents, as the case may be, then the Liens in favor of the Secured Parties under the Collateral Documents with respect to such Collateral (but, except in the case of the Kingfish Transaction, not the proceeds thereof) will be released automatically upon consummation of such disposition, without the need for any consent or (c) a disposition of approval by any Collateral that is permitted pursuant to the First Lien Documents other Secured Party, and the Second Lien DocumentsPriority Collateral Agent and the Senior Collateral Agent, then any Lien at the expense of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, shall execute such documents as are reasonably necessary to effectuate such release. No such release shall require any consent or approval by any of their affiliatesother Secured Party.
(b) If The Lien of any Senior Collateral Document may, at any time, be released in whole or in part by the Senior Collateral Agent pursuant to written directions signed by the Required Senior Lenders (or the Senior Collateral Agent on behalf of the Required Senior Lenders), and the Lien of any Second Lien Agent in the Common Priority Collateral is to Document may, at any time, be released in whole or in part by the Second Priority Collateral Agent pursuant to written directions signed by the foregoing clause Required Second Priority Lenders (a), or the Second Lien Priority Collateral Agent on behalf of the Required Second Priority Lenders); provided that the release of all or substantially all of the Collateral shall promptly execute and deliver require the written consent of all Secured Parties. Except as aforesaid, no such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence require any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and consent or approval by any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Secured Party.
Appears in 2 contracts
Samples: Credit Agreement (Kindred Healthcare Inc), Credit Agreement (Kindred Healthcare Inc)
Releases of Collateral. The Borrower may, upon not less than two (2) Business Days’ prior written notice to the Agent, request the Agent to release its security interest in one or more Assets to the extent such release is necessary in connection with:
(a) Until any repurchase or substitution of such Assets pursuant to and in accordance with the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or any portion of the Common Collateral in connection with: (a) an Enforcement Action, Sale and Servicing Agreement;
(b) a sale pursuant to Section 363 of the Bankruptcy Code, or [reserved]; or
(c) any sale of Purchased Policies to a disposition Person that is not an Affiliate of any Collateral GWG Party (each such Person, a “Third Party Buyer”) on arm’s length terms; provided that is permitted no such release pursuant to this clause (c) shall be made unless:
(i) the First Lien Documents Agent receives payment in full and the Second Lien Documents, then any Lien in cash of the Second Lien Agent sales price for such Purchased Policies (the “Sale Price”), which Sale Price is not less than the greater of (A) the Value of such Purchased Policies and (B) the sum of (1) 95% of the aggregate Collateral Balance of such Purchased Policies plus (2) accrued and unpaid Facility Fees and Interest on a principal amount of Advances equal to such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released Balance (calculated by reference to the same extent Facility Rate);
(ii) neither the Seller nor any of its Affiliates receives any consideration for such sale, other than the Sale Price remitted to the Agent pursuant to clause (i);
(iii) each such Purchased Policy is sold by the Borrower or the Titling Trust to such Third Party Buyer without recourse, such that neither the Titling Trust nor the Borrower is required to (A) make or provide any representations, warranties, indemnities or other undertakings of any kind to such Third Party Buyer or any other Person (it being understood and agreed that the Second Lien Agent Seller may make or provide any such representations, warranties, indemnities or other undertakings as necessary or appropriate, so long as neither the Borrower nor the Titling Trust has any liability with respect thereto) or (B) execute any documents other than an assignment agreement between the Borrower or Titling Trust and such Third Party Buyer in a form that has been approved in writing by the Agent; and
(iv) no Liquidity Trigger Event, Borrowing Base Deficiency or other Event of Default or Potential Event of Default has occurred and is continuing or would result therefrom. The release of the Agent’s security interest in any such Asset shall still, be subject to the terms Agent’s receipt of this Agreement, have a security interest all amounts payable by the Seller in connection with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action repurchase or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates.
(b) If the Lien of Second Lien Agent in the Common Collateral is to be released substitution pursuant to the foregoing Sale and Servicing Agreement (in the case of a release pursuant to clause (a)) or from the relevant Obligor pursuant to the related Asset Documents (in the case of a release pursuant to clause (b)) or from the Seller or the Third Party Buyer (in the case of a release pursuant to clause (c)). Upon the written request of the Borrower following the Agent’s receipt of such amounts, and at the cost and expense of the Borrower, the Second Lien Agent shall promptly deliver and, if necessary, execute and deliver such release documents and instruments and shall take such further actions documents as the First Lien Representative shall Borrower may reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)effectuating such release.
Appears in 2 contracts
Samples: Credit and Security Agreement (GWG Holdings, Inc.), Credit and Security Agreement (GWG Holdings, Inc.)
Releases of Collateral. The Liens securing the Notes and the Guarantees will, automatically and without the need for any further action by any Person be released:
(a) Until the First Lien Obligations Payment Datein whole or in part, if the First Lien Agents release a Lien on as applicable, as to all or any portion of the Common Collateral in connection with: (a) an Enforcement Action, (b) a sale pursuant to Section 363 of the Bankruptcy Code, or (c) a disposition of any Collateral that is permitted pursuant to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, property subject to the terms of this Agreementsuch Liens which has been taken by eminent domain, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure condemnation or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates.similar circumstances,
(b) If in whole, upon:
(i) Discharge of this Indenture under Section 8.8 hereof; or
(ii) a legal defeasance or covenant defeasance of this Indenture under Article VIII hereof;
(c) in part, as to any property that (i) is sold, transferred or otherwise disposed of by either Issuer or any Guarantor (other than to another Issuer or another Guarantor) in a transaction not prohibited by this Indenture, at the Lien time of Second Lien Agent in such transfer or disposition, (ii) is owned or at any time acquired by a Guarantor that has been released from its Guarantee, concurrently with the Common Collateral is to be released release of such Guarantee or (iii) at any time becomes an Excluded Asset pursuant to a transaction not prohibited by this Indenture;
(d) pursuant to Article IX; and
(e) in part, in accordance with the foregoing clause applicable provisions of the Security Documents and the Intercreditor Agreements. Following any such release, upon the request of any Issuer to the Trustee (aaccompanied by an Officer’s Certificate and customary indemnity in favor of the Trustee), the Second Lien Agent Trustee shall promptly execute and/or cause the Collateral Agent and deliver such release the Security Trustee to execute, all documents and instruments and shall take such further actions as the First Lien Representative shall any Issuer or any Guarantor may reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2release, including, without limitation, such documents necessary to evidence the discharge the Ship Mortgages under the laws of the United States. A release of Collateral pursuant to the provisions of this Indenture and the Security Documents shall not be deemed to impair the security under the lien of the Collateral and any financing statementsPerson that is required to deliver an Officers’ Certificate or Opinion of Counsel pursuant to Section 314(d) of the TIA shall be entitled to rely on the foregoing as a basis for delivery of such Officers’ Certificate or Opinion of Counsel. If any Collateral is released in accordance with this Indenture or any of the Security Documents, endorsementsand if the applicable Issuer or Guarantor has delivered the certificates and documents required by the Security Documents, assignmentsthe Trustee will determine whether it has received all documentation required by Section 314(d) of the TIA (to the extent applicable) in connection with such release. Any certificate or opinion required by Section 314(d) of the TIA may be made by an officer of the Company except in cases where Section 314(d) of the TIA requires that such certificate or opinion be made by an independent Person, releases which Person shall be an independent engineer, appraiser or other documents expert selected by or instruments reasonably satisfactory to the Trustee. Notwithstanding any other provision of transfer this Indenture or any Security Document, to the extent necessary and for so long as required for a Subsidiary of the Company not to be subject to any requirement pursuant to Rule 3-6 of Regulation S-X under the Securities Act to file separate financial statements of such Subsidiary with the SEC (which appointmentor any other governmental agency), being coupled the Capital Stock and other securities of such Subsidiary shall not be included in the Collateral with respect to the Notes and shall not be subject to the Liens securing such Notes and the Note Obligations so long as at such time, the Second Lien Facility and any other Permitted Additional Pari Passu Obligations are not secured by a pledge of such Capital Stock or securities. For purposes of this paragraph, “securities” has the meaning ascribed to such term for purposes of Rule 3-16 of Regulation S-X under the Securities Act. Notwithstanding the provisions of this Section 10.03 and Section 10.05 below, so long as no Event of Default shall have occurred and be continuing, an interestIssuer or the applicable Guarantor may, is irrevocable)without any release or consent by the Collateral Agent or the Holders of the Notes, do any activities not prohibited by the other terms of this Indenture.
Appears in 1 contract
Samples: Indenture (APT Sunshine State LLC)
Releases of Collateral. At any time during which no Triggering Event has occurred and is continuing:
(a) Until the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or If any portion Collateral is to be disposed of the Common Collateral in connection with: (a) an Enforcement Action, (b) a sale pursuant to Section 363 of the Bankruptcy Code, or (c) a disposition of any Collateral that is permitted pursuant to by the First Lien Senior Loan Documents and the Second Lien Priority Debt Documents, then any Lien the Liens in favor of the Second Lien Agent on such Common Secured Parties under the Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest Documents with respect to such Collateral (but not the proceeds thereof) will be released automatically upon consummation of such Common Collateral except to disposition, without the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases need for any consent or approval by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable lawSecured Party, and (3) the Second Priority Collateral Trustee, the Senior Collateral Agents and the Second Priority Representatives, at the expense of Rite Aid, shall execute such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral documents as are reasonably necessary to any Borrower, or any of their affiliateseffectuate such release.
(b) If Notwithstanding anything to the contrary in any Second Priority Debt Document, at such time as the Senior Lien of Second Lien Agent in the Common any Collateral is to be released pursuant to the foregoing clause (a)released, the Second Priority Lien Agent in such Collateral shall promptly execute automatically terminate and deliver be released without the need for any action or consent by or from the Second Priority Collateral Trustee, the Second Priority Instructing Group or any Second Priority Debt Party so long as (i) no Lien securing any Indebtedness remains on such release documents Collateral and instruments and shall take such further actions as the First Lien Representative shall reasonably request (ii) after giving effect to evidence any release of the Second Priority Lien in such Lien described Collateral, at least $300,000,000 in paragraph aggregate principal amount of Indebtedness shall remain outstanding under the Senior Credit Agreement.
(a). Until c) Notwithstanding anything to the First Lien Obligations Payment Datecontrary in any Second Priority Debt Document, at such time as a Subsidiary Guarantor ceases to guarantee or be an obligor in respect of, or to pledge any of its assets to secure, any Senior Obligations, such Subsidiary Guarantor shall be automatically released from all its obligations under the Second Priority Subsidiary Guarantee Agreement and the other Second Priority Collateral Documents without the need for any action or consent by or from the Second Priority Collateral Trustee, the Second Priority Instructing Group or any Second Priority Debt Party so long as (i) such Subsidiary Guarantor ceases to guarantee or be an obligor in respect of, or to pledge its assets to secure, any Indebtedness that is secured by the Collateral and (ii) after giving effect to any such release, at least $300,000,000 in aggregate principal amount of Indebtedness shall remain outstanding under the Senior Credit Agreement.
(d) The Lien Agent hereby appoints of any Collateral Document may, at any time, be released in whole or in part by the First Lien Representative and any officer or duly authorized person Senior Collateral Agents (in the case of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney Senior Lien) or the Second Priority Collateral Trustee (in the place and stead case of the Second Lien Agent Priority Lien) pursuant to written directions signed by the Majority Senior Parties (or the Senior Collateral Agents on behalf of the Majority Senior Parties) or the Second Priority Instructing Group, respectively; provided that the release of all or substantially all of the Senior Collateral shall require the written consent of all the Senior Lenders and in the name release of all or substantially all of the Second Lien Agent or in Priority Collateral shall require the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes written consent of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Second Priority Secured Parties.
Appears in 1 contract
Samples: Collateral Trust and Intercreditor Agreement (Rite Aid Corp)
Releases of Collateral. In case this Indenture or any indenture supplemental hereto shall provide for the release of any property from the Lien hereof or thereof in favor of the Holders of Securities of any series the Trustee shall release the same from the Lien of this Indenture or such indenture supplemental hereto upon receipt by the Trustee of an application of the Company requesting such release and describing the Property to be so released, together with:
(a) Until a Board Resolution requesting such release and authorizing an application to the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or any portion of the Common Collateral in connection with: (a) an Enforcement Action, Trustee therefor;
(b) a sale an Officers' Certificate, dated not more than 30 days prior to the date of the application for such release, stating in substance as follows:
(i) the Company has sold or disposed of or has contracted to sell or dispose of the Property so requested to be released or the Company is otherwise entitled to the release of such Property, and in any such case identifying the section or sections of this Indenture or any indenture supplemental hereto under which the Company is entitled to the release of such Property;
(ii) that, in the opinion of the signer, the security afforded by this Indenture and such indenture supplemental hereto will not be impaired by such release in contravention of the provisions hereof and thereof, and, in the case of Property to be disposed of by the Company, unless the Property (or comparable Property) is to be leased or rented by the Company, the Property to be released is not necessary for the efficient operation of its remaining Property that is used or useful in connection with its business;
(iii) in case it shall be stated pursuant to Section 363 clause (b)(i) that such Property is to be sold or disposed of, either (1) that the Company has disposed of or will dispose of, the Property so to be released for a consideration representing, in the opinion of the Bankruptcy Codesigners, its Fair Market Value, which consideration may consist of any one or more of the following: (A) cash, (B) obligations secured by a purchase money Lien upon the Property so to be released, and (C) any other Property that, upon acquisition thereof by the Company, would be subject to the Lien of this Indenture, and such indenture supplemental hereto subject to no Lien other than Liens permitted hereby and thereby, all of such consideration to be briefly described in the certificate, or (c2) a that the Property so to be released has been or is to be disposed of without consideration (or for consideration less than Fair Market Value), in which event such certificate shall state the reason for its disposition at less than Fair Market Value;
(iv) that no Default or Event of any Collateral that is permitted pursuant to Default exists;
(v) the First Lien Documents and Fair Market Value, in the Second Lien Documents, then any Lien opinion of the Second Lien Agent on such Common Collateral will besigners, except as otherwise provided below, automatically and simultaneously released of the Property to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1)be released; provided, however, that it shall not be necessary under this clause (v) to state the Fair Market Value of any Property whose Fair Market Value is certified in each case a certificate of an Independent Appraiser or Independent Financial Advisor under subdivision (c) of this Section;
(vi) that all conditions precedent provided in this Indenture and any indenture supplemental hereto relating to the release of the releases by First Lien Agents Property in subclauses question have been complied with; and
(a)vii) whether the aggregate of the Fair Market Value of the Property to be released and the Fair Market Value of all other Property released since the commencement of the then current calendar year (as previously certified to the Trustee in connection with releases) is 10% or more of the aggregate principal amount of all Securities of such series then outstanding and whether the Fair Market Value of the Property to be released is at least $25,000 and at least 1% of the aggregate principal amount of all Securities of such series at the time outstanding and if all the facts specified in this clause (vii) are present, (b) and that a certificate of an Independent Appraiser or 79 87 Independent Financial Advisor as to the Fair Market Value of the Property to be released will be furnished under subdivision (c)) of this Section;
(c) in case it shall be stated pursuant to clause (b)(vii) that the same shall be furnished, a certificate of an Independent Appraiser, or if such Property consists of securities being pledged as collateral, a certificate of an Independent Financial Advisor, dated not more that 30 days prior to the application for such release, stating:
(1) the net cash proceeds Fair Market Value, in the opinion of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financingsigner, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed the Property to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), released; and
(2) that such sale release, in the opinion of the signer, will not impair the security under this Indenture and any indenture supplemental hereto in contravention of the terms hereof and thereof;
(d) any cash or obligations received or to be received as consideration for any Property so to be released or, if the Property so to be released is conducted subject to a Prior Lien, a certificate of the trustee, mortgagee or other holder of such Prior Lien that it has received such money or obligations and has been irrevocably authorized by the Company to pay over to the Trustee any balance of such money or obligations, remaining after the discharge of such Prior Lien; and, if any Property other than cash or obligations is included in accordance the consideration for any Property so to be released, such instruments of conveyance, assignment and transfer, if any, as may be necessary, in the Opinion of Counsel hereinafter referred to, to subject to the Lien of this Indenture and any such indenture supplemental hereto all the right, title and interest of the Company in and to such Property;
(e) in case the consideration for a proposed release includes Property other than cash or obligations, a certificate of an Appraiser, or if such Property consists of securities being pledged as collateral, a certificate of a Financial Advisor, stating, in the opinion of the signxx, xxe Fair Market Value thereof; and the Appraiser or the Financial Advisor shall be an Independent Appraiser or an Independent Financial Advisor if
(1) within six months prior to the date of acquisition by the Company, such Property has been used or operated, by a Person or Persons other than the Company, in a business similar to that in which it has been or is to be used or operated by the Company, and
(2) the Fair Market Value of such Property as set forth in the certificate required by this subdivision (e) is not less than $25,000 and not less than 1% of the aggregate principal amount of the Securities of such series outstanding; and
(f) an Opinion of Counsel substantially to the effect (i) either (1) that such instruments of conveyance, assignment and transfer as have been or are then delivered to the Trustee are sufficient to subject to the Lien of this Indenture and any such indenture supplemental hereto all the right, title and interest of the Company in and to any Property, other than cash and obligations, that is included in the consideration for the Property so to be released, or (2) that no instruments of conveyance, assignment or transfer are necessary for such purpose, (ii) that the Company has corporate power to own all Property included in the consideration for such release, (iii) in case any part of the money or obligations referred to in subdivision (d) of this Section 15.01 has been deposited with applicable lawa trustee, mortgagee or other holder of the Lien, that such trustee, mortgagee or other holder of the Lien (specifying the trustee, mortgagee or other holder) is entitled to receive the same, and (3iv) such Enforcement Action, sale or disposition does not result that all conditions precedent herein provided and provided in a sale or transfer any indenture supplemental hereto relating to the release of Common Collateral to any Borrower, or any of their affiliates.
(b) If the Lien of Second Lien Agent Property in question have been complied with. All cash received by the Common Collateral is to be released Trustee pursuant to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms provisions of this Section 5.2, to take shall be held by the Trustee in trust and as collateral as provided in this Indenture and any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)such indenture supplemental hereto.
Appears in 1 contract
Samples: Indenture (Axys Pharmecueticals Inc)
Releases of Collateral. (a) Until the First Lien The Notes Obligations Payment Datewill no longer be required to be secured by Liens on Collateral, if the First Lien Agents release a Lien on all or any portion of the Common Collateral in connection with: (a) an Enforcement Action, (b) a sale pursuant to Section 363 of the Bankruptcy Code, or (c) a disposition of any Collateral that is permitted pursuant to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this the Intercreditor Agreement, have the Liens securing the Notes Obligations will be released:
(1) in whole, upon the full and final payment and performance of all Notes Obligations;
(2) in part, with respect to any asset constituting Collateral, if such Collateral is sold or otherwise disposed of to a security interest Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary in a transaction that is not prohibited by this Indenture, subject to compliance with Section 4.10 (other than the provisions thereof relating to the future use of the proceeds of such sale or other disposition), and the Company has delivered to the Collateral Agent and the Trustee an Officers’ Certificate and Opinion of Counsel (with customary assumptions and qualifications for such types of opinion) certifying to such effect; provided that (i) pending its application or use in compliance with Section 4.10, any cash received from a disposition of Collateral shall be deposited in a deposit account controlled by the Collateral Agent and held as Collateral and, from such deposit account, the applicable Collateral Grantor may withdraw funds to deploy the proceeds of an Asset Sale in compliance with Section 4.10, and (ii) to the extent that any Collateral is sold or otherwise disposed of in accordance with the terms of Section 4.10, the non-cash consideration received shall be pledged as Collateral under the Collateral Agreements contemporaneously with such sale, in accordance with the requirements of this Indenture and the Collateral Agreements;
(3) in whole, upon Legal Defeasance pursuant to Section 8.02, Covenant Defeasance pursuant to Section 8.03 or Discharge pursuant to Section 8.08;
(4) in part, with respect to the proceeds assets of such Common Collateral except to the extent applied to First Lien Obligations any Subsidiary Guarantor that is released from its Subsidiary Guarantee in accordance with Section 5.1); provided10.02;
(5) in whole or in part, that in each case with the consent of the releases by First Lien Agents requisite Holders as provided in subclauses Section 9.02; or
(a), (b6) and (c), (1) the net cash proceeds of such Enforcement Action in whole or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financingin part, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates.
(b) If the Lien of Second Lien Agent provided in the Common Intercreditor Agreement or the Collateral is to be released pursuant to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Agreements.
Appears in 1 contract
Samples: Indenture (Pacific Drilling S.A.)
Releases of Collateral. (a) Until Collateral may be released from the Lien and security interest created by the Security Documents at any time and from time to time in accordance with the provisions of the Security Documents, the Intercreditor Agreements and this Indenture. Notwithstanding anything to the contrary in the Security Documents, the Intercreditor Agreements and this Indenture, the Issuers and the Guarantors will be entitled to the release of property and other assets constituting Collateral from the Liens securing the Notes, the First Lien Obligations Payment Dateand the ABL Obligations under any one or more of the following circumstances
(i) at the time of any sale, transfer or other disposition of such property or assets to a person that is not an Issuer or a Guarantor to the extent not prohibited under Section 4.06;
(ii) to the extent the Lien encumbers Collateral that secures or will secure a Qualified Real Estate Financing Facility, if the First Lien Agents release a Lien Liens on all or any portion of such Collateral securing the Common Collateral in connection with: (a) an Enforcement ActionABL Obligations, (b) a sale pursuant to Section 363 of the Bankruptcy Code, or (c) a disposition of any Collateral that is permitted pursuant to the First Lien Documents Obligations, the Remaining Safeway Notes and the any other Second Lien Documents, then Obligations are concurrently released;
(iii) any Lien pledge in favor of the Second Lien Notes Collateral Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released by a parent holding company of the stock of a Real Estate Subsidiary that also secures a Qualified Real Estate Financing Facility to the same extent (it being understood that such pledge in favor of the Second Lien Notes Collateral Agent shall still, subject to is prohibited by the terms of this Agreementsuch Qualified Real Estate Financing Facility, have if the Liens on such Collateral securing the ABL Obligations, the First Lien Obligations, the Remaining Safeway Notes and any other Second Lien Obligations are concurrently released;
(iv) in the case of a security interest Guarantor that is released from its Guarantee with respect to the proceeds Securities pursuant to this Indenture, the release of the property and assets of such Common Collateral except Guarantor;
(v) with the consent of the holders of at least 66.6% of the aggregate principal amount of the Securities then outstanding and affected thereby (including, without limitations, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Securities);
(vi) as described under Article 9;
(vii) to the extent applied required by the Intercreditor Agreements; or
(viii) to First Lien Obligations in accordance with Section 5.1); provided, that in each case the extent constituting an Excluded Asset as a result of the releases a transaction not prohibited by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliatesthis Indenture.
(b) If The Liens on the Lien Collateral securing the Securities and the Guarantees also will be released
(i) upon payment in full of Second Lien the principal of, together with accrued and unpaid interest on, the Securities 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) upon the exercise of a legal defeasance option or covenant defeasance option under this Indenture as described under Article 8.
(c) With respect to any release of Collateral, upon receipt of an Officers’ Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture and the Security Documents and the Intercreditor Agreements, as applicable, to such release have been met and that it is permitted for the Trustee or Notes Collateral Agent to execute and deliver the documents requested by the Issuers in connection with such release and any necessary or proper instruments of termination, satisfaction or release prepared by the Common Issuers, the Trustee and the Notes Collateral is Agent shall, execute, deliver or acknowledge (at the Issuers’ expense) such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the foregoing clause (a), Security Documents or the Second Lien Intercreditor Agreements. Neither the Trustee nor the Notes Collateral Agent shall promptly execute and deliver be liable for any such release documents undertaken in reliance upon any such Officers’ Certificate or Opinion of Counsel, and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence notwithstanding any release of such Lien described term hereof or in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent Security Document or in the First Intercreditor Agreements to the contrary, the Trustee and the Notes Collateral Agent shall not be under any obligation to release any such Lien Representative’s own nameand security interest, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to or execute and deliver any such instrument of release, satisfaction or termination, unless and all documents until it receives such Officers’ Certificate and instruments as may be reasonably necessary or desirable to accomplish the purposes Opinion of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Counsel.
Appears in 1 contract
Releases of Collateral. (a) Until The Lender may release, regardless of consideration, the First Lien obligation of any Person or Persons liable for payment of any of the Obligations Payment Datesecured hereby, if or may release any part of the First Lien Agents release a Lien on all Mortgaged Property or any portion other collateral now or hereafter given to secure the payment of the Common Collateral in connection with: (a) an Enforcement ActionObligations or any part thereof, without impairing, reducing or affecting the obligations of the Borrower or Guarantors under the Loan Documents.
(b) Within thirty (30) days of Borrower’s request, provided: (i) Borrower is not in default hereunder or under any other Loan Document(s); and (ii) no event has occurred which with the passage of time and/or the giving of notice would constitute a sale pursuant to Section 363 default hereunder or under any other Loan Document(s), Lender shall release portions of the Bankruptcy Code, or Mortgaged Property from the lien created by the Mortgage (c“Released Property”) a disposition of any Collateral that is permitted pursuant subject to: (i) Borrower’s payment to the First Lien Documents and the Second Lien Documents, then any Lien Lender of the Second Lien Agent Release Price (as hereinafter defined) for the Released Property, (ii) in Lender’s reasonable discretion, the loan-to-value ratio based on such Common Collateral will be, except the “as otherwise provided below, automatically and simultaneously released to improved” disposition value of the same extent Mortgaged Property shall not be less than sixty percent (it being understood that the Second Lien Agent shall still, subject to the terms 60%) as determined in accordance with Section 2(i) of this Agreement, have a security interest (iii) Borrower’s compliance with the terms and conditions set forth in Subsection 2.20(d)(ii), (iv), (v), (vi), (ix) and (x) of the Mortgage, and (iv) with respect to the proceeds release of such Common Collateral except each townhouse or condominium unit to be released from the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in Mortgaged Property (each case of the releases by First Lien Agents in subclauses (a), (b) and (ca “Sale Unit”), (1) the net cash proceeds of evidence that such Enforcement Action Sale Unit shall be transferred or disposition are applied sold to permanently repay the First Lien Obligations an Affiliate Purchaser (or any DIP Financing, as applicabledefined below) in accordance connection with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof)Borrower obtaining construction financing, (2) an assignment of the proceeds of the sale of such sale Sale Unit (in an amount not less than (a) $55,000 for each Sale Unit if such Sale Unit is conducted transferred to an Affiliate in accordance connection with applicable lawBorrower obtaining construction financing, or (b) the Release Price described below if such Sale Unit is not transferred to an Affiliate Purchaser in connection with Borrower obtaining construction financing) after the payment of the first mortgage on such Sale Unit, and (3) such Enforcement Actiona pledge of the ownership interest in the Affiliate Purchaser, sale or disposition does not result in a sale or transfer of Common Collateral subject to any Borrowerassignment to the first mortgagee, or any each in form and with substance satisfactory to Lender in its reasonable discretion. The Release Price for the Released Property shall be $55,000 for each Sale Unit; when such Sale Unit is transferred to an Affiliate of their affiliates.
Borrower (b“Affiliate Purchaser”) If in connection with Borrower obtaining construction financing. In the Lien event a Sale Unit is not transferred to an Affiliate Purchaser in connection with Borrower obtaining construction financing, the Release Price for such Sale Unit shall be equal to the greater of: (i) eighty (80%) percent of Second Lien Agent in the Common Collateral is net sale price of the Sale Unit (subject to reasonable and customary closing adjustments and sales commissions (to be released pursuant to the foregoing clause approved by Lender in Lender’s commercially reasonable discretion)); (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph ii) seventy-five (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person 75%) percent of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead gross sale price of the Second Lien Agent and in Sale Unit or (iii) the name of the Second Lien Agent or in the First Lien Representative’s own name, from time minimum release amount agreed to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, by Lender prior to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)closing.
Appears in 1 contract
Samples: Loan and Security Agreement (American Leisure Holdings, Inc.)
Releases of Collateral. The Liens on the Collateral will be released with respect to the Notes and the related Guarantees:
(a) Until the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or any portion upon payment in full of the Common Collateral in connection with: (a) an Enforcement Actionprincipal of, together with any accrued and unpaid interest on and all other obligations owed under the Notes and this Indenture, Guarantees and Security Documents that are payable at or prior to the time such principal together with accrued and unpaid interest are paid;
(b) a sale pursuant in whole, as to Section 363 all property subject to such Liens, upon:
(i) satisfaction and discharge of the Bankruptcy Code, this Indenture in accordance with Article 8 hereof; or
(ii) Legal Defeasance or Covenant Defeasance in accordance with Article 8 hereof;
(c) a disposition of in part, as to any property or asset constituting Collateral (A) that is permitted pursuant sold or otherwise disposed of (other than to another grantor) in a transaction not prohibited by Section 4.06 hereof or (B) that is owned by a Guarantor to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on extent such Common Collateral will be, except as otherwise provided below, automatically and simultaneously Guarantor has been released to the same extent (it being understood that the Second Lien Agent shall still, subject to from its guarantee in accordance with the terms of this Indenture;
(d) as to any property or assets, upon the consent of the requisite holders pursuant to Section 9.02 of this Indenture;
(e) to the extent such Collateral (other than Specified Cash Flow Priority Collateral) becomes Excluded Assets as a result of a transaction not prohibited by this Indenture;
(f) to the extent required by the ABL Intercreditor Agreement, have a security interest ; and
(g) upon any sale or disposition of Collateral in compliance with this Indenture with respect to the proceeds of such Common Collateral except Notes and the Security Documents (other than to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action Company or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates.
(b) If the Lien of Second Lien Agent in the Common Collateral is to be released pursuant to the foregoing clause (aanother Guarantor), the Second Lien Liens in favor of the Notes Collateral Agent with respect to the Notes on such Collateral and (subject to the provisions described under Section 10.01(b)) all proceeds thereof (other than any proceeds received by the Company or a Guarantor from such sale or disposition) shall promptly automatically terminate and be released and the Notes Collateral Agent with respect to the Notes, upon receipt of an Officer’s Certificate and an Opinion of Counsel certifying that all conditions precedent to such release have been met, will execute and deliver such release documents and instruments and shall take such further actions instruments, prepared by the Company, as the First Lien Representative shall reasonably Company and the Guarantors may request to evidence any such termination and release of such Lien described in paragraph (a). Until without recourse, representation or warranty) without the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person consent of the First Lien Representative, with full power holders of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Notes.
Appears in 1 contract
Releases of Collateral. The Liens securing the Notes and the Guarantees will, upon compliance with the conditions precedent to the release of the Collateral together with such documentation, if any, as may be required by this Indenture, automatically and without the need for any further action by any Person be released so long as such release is otherwise in compliance with this Indenture, under any one or more of the following circumstances:
(a) Until in part, as to any property or assets constituting Collateral, to enable the First Lien Obligations Payment DateIssuer or Guarantors to consummate the disposition of such property or assets (to a Person that is not the Issuer or a Guarantor) to the extent permitted under Section 4.10 hereof;
(b) in whole, as to all property subject to such Liens, upon:
(1) payment in full of the principal of, together with accrued and unpaid interest and premium, if any, on, the First Lien Agents Notes and all other Obligations under this Indenture, the Note Guarantees and the Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest and premium, if any, are paid;
(2) satisfaction and discharge of this Indenture in accordance with Article 11 hereof; or
(3) Legal Defeasance or Covenant Defeasance in accordance with Article 8 hereof;
(c) if such property becomes Excluded Assets;
(d) as to the property and assets of a Subsidiary Guarantor, upon the release a Lien on of such Subsidiary Guarantor from its Notes Guarantee in accordance with this Indenture;
(e) in part, as to any property or assets constituting Collateral, in accordance with the applicable provisions of the applicable Intercreditor Agreement; and
(f) as to any property or assets, upon the consent of the requisite Holders pursuant to Section 9.02 of this Indenture. Notwithstanding anything to the contrary herein, the Issuer and the Guarantors will not be required to comply with all or any portion of the Common Collateral in connection with: (aSection 314(d) an Enforcement Action, (b) a sale pursuant to Section 363 of the Bankruptcy CodeTrust Indenture Act. If the Issuer requests a formal release, or (c) a disposition of any Collateral that is permitted pursuant the Issuer shall deliver to the First Lien Documents Trustee an Officer’s Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released Security Documents relating to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms execution and delivery of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates.
(b) If the Lien of Second Lien Agent in the Common Collateral is to be released pursuant to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)have been complied with.
Appears in 1 contract
Releases of Collateral. (a) Until Upon the First Lien indefeasible payment in full of all Obligations Payment Date, if and the First Lien Agents release a Lien on all or any portion termination of the Common Collateral in connection with: (a) an Enforcement ActionFacility, (b) a sale pursuant to Section 363 the Lender shall, at the expense of the Bankruptcy CodeBorrower, or promptly release its security interest in the Collateral and take all reasonable steps to effect such release (c) a disposition including the execution and delivery of any Collateral that is permitted pursuant UCC-3 financing statement terminations and the delivery to the First Lien Documents and the Second Lien Documents, then any Lien Custodian of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to notice described in the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Custodial Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates.
(b) If the Lien of Second Lien Agent in the Common Collateral is to be released pursuant to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, The Borrower may from time to timetime request the Lender to release its security interest in one or more Loans and the Collateral related thereto in connection with (i) any repurchase of such Loans pursuant to and in accordance with the Purchase and Sale Agreement, (ii) any sale of such Loans at fair market value on a “whole-loan” basis or (iii) any sale of such Loans to a bankruptcy-remote subsidiary pursuant to a Securitization; any such sale or repurchase shall be made pursuant to documentation reasonably satisfactory to the Lender, which documentation (x) shall specify that such sale or repurchase is being made without recourse to the Borrower and without representation or warranty of any kind on the part of the Borrower (other than representation and warranty that such sale or repurchase is being made free and clear of any Adverse Claim created by the Borrower) and (y) shall not impose any liabilities or obligations on the Borrower other than customary obligations necessary to effectuate the transfer of title of the relevant Loans, which obligations the Borrower is then capable of performing. Any sale or repurchase satisfying the requirements specified in the First Lien Representative’s sole discretionpreceding sentence is hereinafter referred to as a “Permitted Sale Transaction”. In connection with any Permitted Sale Transaction, (I) all proceeds arising from such Permitted Sale Transaction shall be deposited into the Collection Account and (II) at the cost and expense of Borrower, the Lender shall deliver and, if necessary, execute such instruments and documents as the Borrower may reasonably request for the purposes of carrying out effectuating the terms Lender’s release of this Section 5.2, to take any its security interest in the applicable Loans and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)related Collateral.
Appears in 1 contract
Releases of Collateral. The Note Liens and the Note Guarantees will, upon compliance with the conditions precedent to the release of the Collateral together with such documentation, if any, as may be required by the TIA and this Indenture, automatically and without the need for any further action by any Person be released so long as such release is otherwise in compliance with the TIA:
(a) Until the First Lien Obligations Payment Datein whole or in part, if the First Lien Agents release a Lien on 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;
(b) in whole, as to all property subject to such Liens, upon:
(i) payment in full of the Common Collateral principal of, accrued and unpaid interest and premium on the Notes; or
(ii) satisfaction and discharge of this Indenture under Section 8.2 hereof; or
(iii) legal defeasance or covenant defeasance of this Indenture under Article VIII hereof;
(c) in connection with: part, as to any property that (a) an Enforcement Actionis sold, transferred or otherwise disposed of by the Issuer or Restricted Subsidiary in a transaction not prohibited by this Indenture or the relevant Security Documents, at the time of such sale, transfer or disposition, to the extent of the interest sold, transferred or disposed of or (b) is owned or at any time acquired by a sale Guarantor that has been released from its Note Guarantee, concurrently with the release of such Note Guarantee in each case;
(d) pursuant to Section 363 any amendment to, or waiver of, the provisions of this Indenture or any Security Document that has the effect of releasing all or substantially all of the Bankruptcy CodeCollateral from Note Liens, with the consent of the Holders of at least 662/3% in aggregate principal amount of the Notes then outstanding; or
(e) in part, in accordance with the applicable provisions of the Security Documents. If any Collateral is released in accordance with any of the Security Documents (other than as otherwise permitted by this Indenture) and if the Issuer or (cthe applicable Guarantor has delivered the certificates and documents required by the Security Documents, the Trustee will determine whether it has received all documentation required by Section 314(d) a disposition of the TIA in connection with such release. The Capital Interests of any Subsidiary of the Issuer will constitute Collateral that is permitted pursuant to securing the First Lien Documents Notes and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except related Note Guarantees only to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case such Capital Interests can secure such Notes and Note Guarantees without Rule 3-16 of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations Regulation S-X (or any DIP Financingother law, as applicablerule or regulation) in accordance requiring separate financial statements of such Subsidiary to be filed with Section 5.1 the Commission (it being acknowledged or any other governmental agency). In the event that Rule 3-16 of Regulation S-X requires or is amended, modified or interpreted by the Commission to require (or is replaced with another rule or regulation, or any credit bid by either First Lien Agent in other law, rule or regulation is adopted, which would require) the filing with the Commission (or any foreclosure or other disposition governmental agency) of separate financial statements of any Common such Subsidiary due to the fact that such Subsidiary’s Capital Interests secure the Notes and the related Note Guarantees, then such Capital Interests shall automatically be deemed not to be part of the Collateral pursuant securing the Notes and Note Guarantees (but only to the extent necessary to not be subject to such requirement). In such event, the Security Documents may be amended or modified, without the consent of any Enforcement Action Holder, to the extent necessary to release the security interests on the Capital Interests that are so deemed to no longer constitute part of the Collateral. In the event that Rule 3-16 of Regulation S-X is amended, modified or interpreted by the Commission to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s Capital Interests to secure the Notes and the related Note Guarantees in excess of the amount then pledged without the filing with the Commission (or any other governmental agency) of separate financial statements of such Subsidiary, then the Capital Interests of such Subsidiary shall automatically be deemed to be a permanent repayment part of the First Lien Obligations Collateral securing the Notes and Note Guarantees (or any DIP Financing, as applicable) for purposes hereof), (2) but only to the extent such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does Subsidiary would not result in a sale or transfer of Common Collateral be subject to any Borrower, or any such financial statement requirement and in no event in excess of their affiliates.
(b) If the Lien portion of Second Lien Agent in the Common Collateral is such Capital Interests then-required to be released pledged as Collateral pursuant to this Indenture and the foregoing clause (aSecurity Documents). In such event, the Second Lien Agent shall promptly execute Security Documents may be amended or modified, without the consent of any Holder, to the extent necessary to subject to the Liens under the Security Documents such additional Capital Interests. In the event that the portion of Capital Interests of any Subsidiary of the Issuer pledged as Collateral at any time exceeds the portion then-required to be pledged as Collateral pursuant to this Indenture and deliver the Security Documents, such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release excess portion of such Lien described in paragraph (a)Capital Interests shall automatically be deemed not to be part of the Collateral securing the Notes and Note Guarantees. Until the First Lien Obligations Payment DateIn such event, the Second Lien Agent hereby appoints Security Documents may be amended or modified, without the First Lien Representative and consent of any officer or duly authorized person Holder, to the extent necessary to release the security interests on the Capital Interests that are so deemed to no longer constitute part of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Collateral.
Appears in 1 contract
Samples: Indenture (Kemet Corp)
Releases of Collateral. (a) Until The Liens on the First Lien Obligations Payment DateCollateral will be automatically released with respect to the Securities, if and the First Lien Agents release a Lien on all Trustee and/or the Notes Collateral Agent (subject to its receipt of an Officer’s Certificate and Opinion of Counsel as provided below) shall execute documents evidencing such release, at the Company’s sole cost and expense, under one or any portion more of the Common Collateral following circumstances:
(i) upon payment in connection with: (a) an Enforcement Action, (b) a sale pursuant to Section 363 full of the Bankruptcy Codeprincipal of, together with any accrued and unpaid interest on and all other obligations owed under, the Securities, this Indenture, the Guarantees and the Security Documents that are payable at or prior to the time such principal together with accrued and unpaid interest are paid;
(ii) in whole, upon satisfaction and discharge of this Indenture;
(iii) in whole, upon the exercise of a legal defeasance option or covenant defeasance option under this Indenture as described under Article 8;
(iv) in part, as to any property or asset constituting Collateral (A) that is sold or otherwise disposed of (other than to another Grantor) in a transaction not prohibited under Section 4.06 or (cB) a disposition of any Collateral that is permitted pursuant owned by a Subsidiary Guarantor to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on extent such Common Collateral will be, except as otherwise provided below, automatically and simultaneously Subsidiary Guarantor has been released to the same extent (it being understood that the Second Lien Agent shall still, subject to from its Guarantee in accordance with the terms of this AgreementIndenture or (C) otherwise in accordance with, have a security interest with respect to and as expressly provided for under the proceeds of such Common Collateral except Intercreditor Agreements;
(v) (A) to the extent applied to First the Lien encumbers Collateral that secures or will secure a Qualified Real Estate Financing Facility, if the Liens on such Collateral securing the ABL Obligations and the other CF Debt Obligations are concurrently released, as applicable or (B) any pledge in accordance with Section 5.1); provided, that in each case favor of the releases Notes Collateral Agent by First Lien Agents a parent holding company of the stock of a Real Estate Subsidiary that also secures a Qualified Real Estate Financing Facility to the extent such pledge in subclauses (a), (b) and (c), (1) favor of the net cash proceeds Notes Collateral Agent is prohibited by the terms of such Enforcement Action or disposition Qualified Real Estate Financing Facility, if the Liens on such Collateral securing the ABL Obligations and the other CF Debt Obligations are applied to permanently repay the First Lien Obligations (or any DIP Financingconcurrently released, as applicable;
(vi) in accordance with Section 5.1 as described under Article 9;
(it being acknowledged that any credit bid vii) (A) to the extent constituting an Excluded Property as a result of a transaction not prohibited by either First Lien Agent in any foreclosure this Indenture or other disposition of any Common Collateral pursuant (B) to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliatesextent required by the Intercreditor Agreements.
(b) If With respect to any release of Collateral, upon receipt of an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture and the Lien of Second Lien Agent in the Common Collateral is Security Documents to be released pursuant to the foregoing clause (a)such release have been met, the Second Lien Notes Collateral Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions prepared by the Company, as the First Lien Representative shall reasonably Company and the Subsidiary Guarantors may request to evidence any such termination and release of such Lien described in paragraph (a). Until without recourse, representation or warranty) without the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person consent of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead Holders of the Second Lien Securities. Neither the Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate or Opinion of Counsel, and notwithstanding any term hereof or in the name of the Second Lien Agent any Security Document or in the First Intercreditor Agreements to the contrary, the Trustee and the Notes Collateral Agent shall not be under any obligation to release any such Lien Representative’s own nameand security interest, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to or execute and deliver any such instrument of release, satisfaction or termination, unless and all documents until it receives such Officer’s Certificate and instruments Opinion of Counsel.
(c) If the Notes Collateral Agent is requested to authorize or sign a release of Collateral, the Company will furnish to the Notes Collateral Agent and the Trustee (if not the Notes Collateral Agent), prior to each proposed release of Collateral pursuant to the Security Documents and this Indenture, an Officer’s Certificate and Opinion of Counsel and such other documentation as may be reasonably necessary or desirable to accomplish is required by this Indenture, the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Security Documents and the Intercreditor Agreements.
Appears in 1 contract
Releases of Collateral. (a) Until the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or any portion of the Common Collateral in connection with: (a) an Enforcement Action, Subject to subsection (b) of this Section 11.02, Collateral may be released from the Lien and security interest created by the Security Documents at any time or from time to time in accordance with the provisions of the Security Documents, the Intercreditor Agreement or as provided hereby. The Issuers and the Guarantors shall be entitled to a sale release of assets included in the Collateral from the Liens securing the Notes, and the same shall automatically be released from such Liens, and the Collateral Agent and the Trustee shall deliver such evidence of release as prepared by the Issuers or a Guarantor and at the Issuers’ or Guarantor’s sole cost and expense, under one or more of the following circumstances:
(1) if all other Liens on such property or assets securing First-Priority Lien Obligations and other Pari Passu Lien Obligations including all commitments and letters of credit thereunder are released; provided, however, that if, prior to the occurrence of the Fall-Away Date, the Issuers or any Restricted Subsidiary subsequently incurs Indebtedness secured by any Permitted Lien (other than (x) Liens Incurred under clause (9) of the definition of “Permitted Liens”; and (y) Purchase Money Liens) then the Company and its Restricted Subsidiaries shall be required to as soon as practicable after the Incurrence of such Permitted Lien execute and deliver such security instruments and financing statements to vest in the Collateral Agent a perfected security interest (subject only to Permitted Liens) in the assets or property subject to such Permitted Lien, which in the case of any such subsequent First-Priority Lien Obligations that are secured by a senior priority Lien, the Liens on such property or assets securing the Notes shall be junior in priority to the Liens on such property or assets securing such First-Priority Lien Obligations to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such First-Priority Lien Obligations with the Lien held either by the First-Priority Collateral Agent or by the Collateral Agent or other representative designated by the Company to hold the Liens for the benefit of the Holders of the Notes and subject to an intercreditor agreement that provides the administrative agent or collateral agent substantially the same rights and powers as afforded under the Intercreditor Agreement;
(2) upon payment in full of the principal of, accrued and unpaid interest, if any, and premium, if any, on, the Notes;
(3) upon satisfaction and discharge of this Indenture pursuant to Section 363 8.01;
(4) upon a Legal Defeasance or Covenant Defeasance of a series of the Bankruptcy CodeNotes pursuant to Sections 8.03 and 8.04 with respect to the Notes of such series;
(5) upon the occurrence of the Fall-Away Date;
(6) as to any property or asset constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of the Guarantors in a transaction permitted by the documents governing the First-Priority Lien Obligations (whether or not an “event of default” under the documents governing the First-Priority Lien Obligations or the documents governing the Pari Passu Lien Obligations has occurred and is continuing) if all other Liens on that asset securing the First-Priority Lien Obligations (including all commitments thereunder) are released, (B) that is sold or otherwise disposed of or deemed disposed of in a transaction permitted by Section 4.04, (C) that is owned by a Guarantor to the extent such Guarantor has been released from its Guarantee in accordance with this Indenture or (cD) a disposition otherwise in accordance with, and as expressly provided for under, this Indenture; or
(7) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture. The Collateral Agent shall execute, deliver or acknowledge any necessary or proper instruments of termination, satisfaction or release prepared by the Company of any Collateral that permitted to be released pursuant to this Indenture, the Security Documents or the Intercreditor Agreement. Any execution, delivery or acknowledgement pursuant to this Section 11.02 shall be without recourse to or warranty by the Collateral Agent.
(b) At any time when a Default has occurred and is permitted continuing and the maturity of the Notes of any series has been accelerated (whether by declaration or otherwise) and the Trustee (if not then the Collateral Agent) has delivered a notice of acceleration to the Collateral Agent, no release of Collateral pursuant to the First Lien provisions of this Indenture or the Security Documents and shall be effective as against the Second Lien Documents, then any Lien Holders of the Second Lien Agent on such Common Collateral will benotes of that series, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates.
(b) If the Lien of Second Lien Agent in the Common Collateral is to be released pursuant to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Intercreditor Agreements.
Appears in 1 contract
Samples: Indenture (Chrysler Group LLC)
Releases of Collateral. At any time during which no Triggering Event has occurred and is continuing:
(a) Until the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or If any portion Collateral is to be disposed of the Common Collateral in connection with: (a) an Enforcement Action, (b) a sale pursuant to Section 363 of the Bankruptcy Code, or (c) a disposition of any Collateral that is permitted pursuant to by the First Lien Senior Debt Documents and the Second Lien Priority Debt Documents, then any Lien the Liens in favor of the Second Lien Agent on such Common Secured Parties under the Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest Documents with respect to such Collateral (but not the proceeds thereof) will be released automatically upon consummation of such Common Collateral except to disposition, without the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases need for any consent or approval by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable lawSecured Party, and (3) the Second Priority Collateral Trustee, the Senior Collateral Agent, the Senior Representatives and the Second Priority Representatives, at the expense of Rite Aid, shall execute such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral documents as are reasonably necessary to any Borrower, or any of their affiliateseffectuate such release.
(b) If Notwithstanding anything to the contrary in any Second Priority Debt Document, at such time as the Senior Lien of Second Lien Agent in the Common any Collateral is to be released pursuant to the foregoing clause (a)released, the Second Priority Lien Agent in such Collateral shall promptly execute automatically terminate and deliver be released without the need for any action or consent by or from the Second Priority Collateral Trustee, the Second Priority Instructing Group or any Second Priority Debt Party so long as (i) no Lien securing any Indebtedness remains on such release documents Collateral and instruments and shall take such further actions as the First Lien Representative shall reasonably request (ii) after giving effect to evidence any release of the Second Priority Lien in such Lien described Collateral, at least $300,000,000 in paragraph aggregate principal amount of Indebtedness shall remain outstanding under the Senior Facilities.
(a). Until c) Notwithstanding anything to the First Lien Obligations Payment Datecontrary in any Second Priority Debt Document, at such time as a Subsidiary Guarantor ceases to guarantee or be an obligor in respect of, or to pledge any of its assets to secure, any Senior Obligations, such Subsidiary Guarantor shall be automatically released from all its obligations under the Second Priority Subsidiary Guarantee Agreement and the other Second Priority Collateral Documents without the need for any action or consent by or from the Second Priority Collateral Trustee, the Second Priority Instructing Group or any Second Priority Debt Party so long as (i) such Subsidiary Guarantor ceases to guarantee or be an obligor in respect of, or to pledge its assets to secure, any Indebtedness that is secured by the Collateral and (ii) after giving effect to any such release, at least $300,000,000 in aggregate principal amount of Indebtedness shall remain outstanding under the Senior Facilities.
(d) The Lien of any Collateral Document may, at any time, be released in whole or in part by the Senior Collateral Agent hereby appoints (in the First Lien Representative and any officer or duly authorized person case of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney Senior Lien) or the Second Priority Collateral Trustee (in the place and stead case of the Second Lien Priority Lien) pursuant to written directions signed by the Majority Senior Parties (or the Senior Collateral Agent and on behalf of the Majority Senior Parties) or the Second Priority Instructing Group, respectively; provided that the release of all or substantially all of the Senior Collateral shall require the written consent of all the Senior Lenders and, to the extent provided in the name applicable Additional Senior Debt Documents, the Additional Senior Debt Parties and the release of all or substantially all of the Second Lien Agent or in Priority Collateral shall require the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes written consent of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Second Priority Secured Parties.
Appears in 1 contract
Samples: Collateral Trust and Intercreditor Agreement (Rite Aid Corp)
Releases of Collateral. (a) Until In connection with any proposed sale, assignment, transfer, or other disposition of Collateral, the First Lien Company and the Debtors with an interest in such Collateral may deliver a Release Notice to the Collateral Trustee which the Collateral Trustee shall promptly distribute to the holders of Secured Obligations Payment Dateunder the Principal Bank Facility and the Principal L/C Facility. Each of the holders of Secured Obligations under either of the Facilities shall have 15 days after the receipt of such Release Notice to notify the Collateral Trustee if such holder believes that the release of such Collateral is improper because (i) the release of such Collateral is not permitted under the applicable terms of the Facilities or has not been consented to by the Required Decision Group or (ii) the intended application of the proceeds from the disposition of such Collateral is not in accordance with the applicable requirements of the Facilities (any such certificate being referred to herein as an "Objection Certificate"). If an Objection Certificate is not delivered during such 15 day period, then the Collateral Trustee shall be authorized to and agrees to release the Liens of the Collateral Trustee in the Collateral described in the Release Notice upon the contemporaneous receipt by Collateral Trustee of the amount of the proceeds, if the First Lien Agents release a Lien on all or any portion any, of the Common Collateral in connection with: (a) an Enforcement Action, (b) a sale pursuant such permitted disposition that are required to Section 363 of the Bankruptcy Code, or (c) a disposition of any Collateral that is permitted pursuant be delivered to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject Trustee pursuant to the terms of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, Facilities or any of their affiliates.
the Security Documents and as set out in the Release Notice. If during the 15 day period referenced above the Collateral Trustee receives an Objection Certificate, then the Liens will not be released at the end of such period and the Collateral Trustee will not take any actions requested under the Release Notice until (bx) If such Objection Certificate shall be withdrawn in writing by the holder of Secured Obligations which shall have delivered the same to the Collateral Trustee or (y) until the Collateral Trustee shall have received a final order of a court of competent jurisdiction directing it to release the Liens of the Collateral Trustee in such Collateral. In connection with any release pursuant to this Section 2.5, upon receipt of the appropriate amount of proceeds from such disposition, if any, the Collateral Trustee shall at the request of the Company execute a partial release of the Liens granted under the Security Documents and such instruments, including UCC-3 amendments or termination statements, as are necessary to partially release or terminate any documents constituting public notice of the Security Documents and the Liens granted thereunder and shall assign and transfer, or cause to be assigned and transferred, and shall deliver, or cause to be delivered, to the applicable Debtors, all property thereof then held by the Collateral Trustee in which the Lien of Second Lien Agent in the Common Collateral is to be released pursuant to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Trustee has been released.
Appears in 1 contract
Samples: Collateral Trust Agreement (Williams Companies Inc)
Releases of Collateral. (a) Until the First Lien Obligations Payment DateSo long as no Event of Default is continuing and no Enforcement Notice is in effect, if the First Lien Agents release a Lien on all in each case where this Agreement or any portion Credit Document permits any Pledgor to obtain a release of Pledged Collateral upon compliance with the Common provisions set forth therein, the Collateral in connection with: (a) an Enforcement ActionAgent shall upon receipt of evidence from such Pledgor of such compliance, (b) a sale pursuant to Section 363 of the Bankruptcy Code, or (c) a disposition of any Collateral that is permitted pursuant and subject to the First Lien Documents and next sentence, release from the Second Lien Documents, then any Lien of the Second Lien Agent on this Agreement such Common Pledged Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being expressly understood that this sentence of this Section 13.12 shall not be construed as in any way limiting, amending, supplementing or waiving any of the Second procedures to be followed under this Agreement or the Credit Documents or any of the conditions precedent to be satisfied thereunder). In each case where any Credit Document specifically permits a Pledgor to obtain a release of Pledged Collateral upon compliance with the provisions set forth therein, the Collateral Agent shall, upon receipt of a written direction from Lenders' Collateral Agent confirming that such proposed release complies with the provisions of the Credit Documents, release such Pledged Collateral from the Lien of this Agreement. In the event that neither the Credit Documents nor this Agreement specifically contemplates such Pledgor's right to obtain a particular release of Pledged Collateral which shall be requested by such Pledgor, and so long as no Event of Default is continuing and no Enforcement Notice is in effect, the Lien of this Agreement shall be released in whole or in part by the Collateral Agent acting solely at the direction and with the consent of the Lenders' Collateral Agent. The Lenders' Collateral Agent shall stillhave the exclusive authority to direct the Collateral Agent to amend, subject to the terms supplement or waive any provision of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a)without any consent or approval, (b) and (c)or prior notice, (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliatesother Secured Party.
(b) If the Lien of Second Lien Agent in the Common Collateral is to be released pursuant to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable).
Appears in 1 contract
Releases of Collateral. The Notes Collateral Agent may take any action requested by the Company having the effect of releasing or subordinating any Collateral to the extent necessary to permit consummation of any transaction not prohibited by this Indenture. In addition, the Liens on the Collateral will be automatically released with respect to the Securities and the Guarantees, in each case without delivery of any document or performance of any further act by any Person:
(a) Until in whole, upon payment in full (other than any contingent obligation arising thereunder for which a claim has not been asserted) of the First Lien Obligations Payment Dateprincipal of, accrued and unpaid interest, if any, and premium, if any, on the First Lien Agents release a Lien on all or any portion of the Common Collateral in connection with: (a) an Enforcement Action, Securities;
(b) with respect to any Guarantor, upon the consummation of any transaction permitted by this Indenture as a sale result of which such Guarantor ceases to be a Guarantor (including by becoming an Excluded Subsidiary), pursuant to Section 363 of the Bankruptcy Codea merger with a Subsidiary that is not a Guarantor or a designation or conversion as an Unrestricted Subsidiary, or in each case in a transaction permitted by, and pursuant to, this Indenture;
(c) upon (i) any sale or other transfer by the Issuers or any Guarantor (other than to any Issuer or any other Guarantor) of any Collateral in a disposition transaction permitted under the Security Documents, (ii) the effectiveness of any written consent to the release of the security interest created under any Security Document in any Collateral or to the release of any Guarantor from its Guarantee pursuant to the Security Documents, (iii) upon any Collateral becoming Excluded Collateral, (iv) any release of ABL Priority Collateral provided pursuant to the ABL Intercreditor Agreement (with respect to the Notes Claimholder’s second lien on such Collateral), (v) any Collateral that is permitted pursuant to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have owned by a security interest with respect to the proceeds of such Common Collateral except Guarantor to the extent applied to First Lien Obligations such Guarantor has been released from its Guarantee in accordance with this Indenture or (vi) otherwise in accordance with, and as expressly provided for under, this Indenture and the Security Documents;
(d) as described in the ABL Intercreditor Agreement (and, if applicable, under the Pari Passu Intercreditor Agreement);
(e) in whole, upon legal defeasance or satisfaction and discharge of this Indenture pursuant to Section 5.1)8.04;
(f) to the extent any particular item of Collateral becomes an Excluded Asset;
(g) as described under Section 4.14; provided, provided that the Liens on the Collateral in each case favor of the releases by First Lien Agents in subclauses Securities will be reinstated upon the occurrence of the Reversion Date;
(a), (b) and (c), (1h) the net cash proceeds release of such Enforcement Action or disposition are applied to permanently repay Excess Proceeds that remain unexpended after the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition conclusion of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is an Asset Sale Offer conducted in accordance with applicable law, and this Indenture; or
(3i) such Enforcement Action, as described in Article 9. Upon any sale or disposition does not result of Collateral in a sale or transfer compliance with this Indenture and the Security Documents, the Liens in favor of Common the Notes Collateral Agent on such Collateral and (subject to any Borrower, or any of their affiliates.
(bthe provisions described under Section 10.02) If the Lien of Second Lien Agent in the Common Collateral is to all proceeds thereof shall automatically terminate and be released pursuant to and the foregoing clause (a), the Second Lien Notes Collateral Agent shall promptly will execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as the Company may be reasonably necessary request to evidence such termination and release (without recourse or desirable to accomplish warranty) without the purposes consent of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)the holders.
Appears in 1 contract
Releases of Collateral. 66
(a) Until Upon the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or any portion request of the Common Collateral Borrower made in connection with: (a) an Enforcement Actionwith any sale, (b) a sale transfer or other disposition permitted pursuant to Section 363 8.08 of this Agreement (a "Permitted Disposition") and provided that the Bankruptcy Code, or (c) a disposition Net Sale Proceeds of any Collateral that is permitted such Permitted Disposition are paid or pledged, as the case may be, to the Lender pursuant to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms Section 8.08 of this Agreement, have a security interest with respect the Lender shall, at the expense of the Obligors, release, without recourse, representation or warranty, its Lien on any such Collateral. Notwithstanding anything to the proceeds of contrary, the Lender shall not have any obligation to release its Lien on any such Common Collateral except to if the extent applied to First Lien Obligations Lender determines, in accordance with Section 5.1); providedits sole discretion exercised reasonably, that in each case the conditions of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with this Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does 10.16 have not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliatesbeen satisfied.
(b) If The Borrower may exercise its rights under this Section 10.16 at any time during the Lien term of Second Lien Agent this Agreement in connection with a Permitted Disposition by delivering to the Lender, not less than ten (10) Business Days prior to the date of the proposed Permitted Disposition and release, a certificate substantially in the Common Collateral is form of Exhibit I hereto (the "Release Certificate") of the Chief Executive Officer or Designated Financial Officer of the Borrower which shall (i) refer to this Section 10.16, (ii) identify the assets proposed to be released sold and any documents that the Borrower is requesting the Lender to sign in connection with any such proposed release, and be accompanied by a counterpart of any such documents executed and acknowledged by all parties thereto (if any) other than the Lender (and in form for execution by the Lender), (iii) certify, as of the date of the Release Certificate, that, (A) both immediately before and immediately after giving effect to such requested release no Event of Default or Potential Default has occurred and is continuing, and (B) the Net Sale Proceeds of such Permitted Disposition has been paid or will be paid to the Lender pursuant to the foregoing clause terms of Section 2.04(a)(ii) of this Agreement, and (a), iv) certify that the Second Lien Agent Lender shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person receive a payment of the First Lien Representative, with full power of substitution, as its true cash Net Sale Proceeds and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead a pledge of the Second Lien Agent and non-cash Net Sale Proceeds in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out accordance with the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes 2.04(a)(ii) of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Agreement.
Appears in 1 contract
Releases of Collateral. (a) Until The Liens on the First Lien Collateral in respect of this Agreement will no longer secure the Secured Obligations Payment Date, if the First Lien Agents release a Lien on all or any portion other obligations under the Subsidiary Guarantees, and the right of the Common Collateral in connection with: (a) an Enforcement Action, (b) a sale pursuant Trust to Section 363 the benefits and proceeds of the Bankruptcy CodeLiens on the Collateral will terminate and be discharged, in each case, automatically and without the need for any further action by any Person:
(i) in whole, upon the full and final payment and performance of the Secured Obligations of Vistra Operations and the Subsidiary Guarantors under this Agreement;
(ii) in whole, upon the satisfaction and discharge of this Agreement in accordance with the terms hereof;
(iii) in whole or in part, as applicable, upon receipt of the consent of the required Holders in accordance with Section 10.3;
(civ) a disposition of in part, as to any Collateral that is permitted pursuant sold, transferred or otherwise disposed of by Vistra Operations or any Subsidiary Guarantor in a transaction or other circumstance made in compliance with this Agreement and the Note Security Documents at the time of such sale, transfer or disposition;
(v) in whole, with respect to the First Lien Documents and Collateral owned by any Subsidiary Guarantor, upon the Second Lien Documentsrelease of the Subsidiary Guarantee of such Subsidiary Guarantor in accordance with the terms of this Agreement; and
(vi) in whole, upon the occurrence of an Investment Grade Event with respect to any issued Senior Secured Notes; provided, however, that in the event that on any subsequent date (the “Reversion Date”) any two of the three Rating Agencies withdraw their Investment Grade rating of the senior, unsecured, long-term debt securities of Vistra Operations or downgrade such rating below Investment Grade, then (i) Vistra Operations and any Lien of Subsidiary Guarantors will be required to secure the Second Lien Agent on such Common Secured Obligations with the Collateral within 60 days after the Reversion Date and (ii) will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, thereafter be subject to the terms of this Agreement, have a security interest Agreement and the Note Security Documents with respect to future events; provided that clause (i) will not apply to property and other assets released by Vistra Operations under any other subsection of this Section 9.5(a). For the proceeds avoidance of doubt, in the event of any such Common Collateral except reinstatement pursuant to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses clause (a)i) hereof, (bA) no action taken or omitted to be taken by Vistra Operations or any Subsidiary Guarantors after a Release Event and before the Reversion Date will give rise to a Default, Event of Default or other breach under this Agreement and (c), (1B) the net cash proceeds none of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (Vistra Operations or any DIP FinancingSubsidiary Guarantor will bear any liability for any actions taken or events occurring after a Release Event and before the Reversion Date, as applicable) in accordance with Section 5.1 (it being acknowledged that or any credit bid by either First Lien Agent in actions taken at any foreclosure or other disposition of any Common Collateral time pursuant to any Enforcement Action is deemed contractual obligation arising after a Release Event and before the Reversion Date; provided that all Liens incurred after a Release Event and before the Reversion Date will be classified to be a permanent repayment have been incurred or issued pursuant to the applicable clause of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer definition of Common Collateral to any Borrower, or any of their affiliates“Permitted Lien”.
(b) If In addition, the Lien of Second Lien Agent in Collateral Trustee’s Liens on the Common Collateral is to will be released pursuant upon the terms and subject to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described conditions set forth in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person Section 4.1 of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Collateral Trust Agreement.
Appears in 1 contract
Samples: Facility Agreement (Vistra Corp.)
Releases of Collateral. At any time during which no Triggering Event has occurred and is continuing:
(a) Until the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or If (i) any portion Collateral is to be disposed of the Common Collateral in connection with: (a) an Enforcement Action, (b) a sale pursuant to Section 363 of the Bankruptcy Code, or (c) a disposition of any Collateral that is specifically permitted pursuant to by the First Lien Senior Loan Documents and the Second Lien Priority Debt Documents, then any Lien (ii) Rite Aid delivers a certificate to such effect to the Second Priority Collateral Trustee, the Senior Collateral Agent and each Second Priority Representative at least 3 Business Days before the date of the requested release, and (iii) neither the Senior Collateral Agent nor any Second Lien Agent on Priority Representative objects before the date of the requested release that such Common Collateral will disposition is prohibited by the Senior Loan Documents or the Second Priority Debt Documents, as the case may be, except as otherwise provided below, automatically and simultaneously released to then the same extent (it being understood that Liens in favor of the Second Lien Agent shall still, subject to Secured Parties under the terms of this Agreement, have a security interest Collateral Documents with respect to such Collateral (but not the proceeds thereof) will be released automatically upon consummation of such Common Collateral except to disposition, without the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases need for any consent or approval by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable lawSecured Party, and (3) the Second Priority Collateral Trustee, Senior Collateral Agent and the Second Priority Representatives, at the expense of Rite Aid, shall execute such Enforcement Action, sale documents as are reasonably necessary to effectuate such release. No such release shall require any consent or disposition does not result in a sale or transfer of Common Collateral to approval by any Borrower, or any of their affiliatesother Secured Party.
(b) If the The Lien of Second Lien Agent in the Common any Collateral is to Document may, at any time, be released in whole or in part by the Second Priority Collateral Trustee or the Senior Collateral Agent, as the case may be, pursuant to written directions signed by the foregoing clause Majority Senior Parties (a), or the Senior Collateral Agent on behalf of the Majority Senior Parties) and the Second Lien Agent Priority Instructing Group; provided that (i) the release of all or substantially all of the Collateral shall promptly execute require the written consent of all Secured Parties, (ii) the release of any Collateral consisting of PCS Excluded Assets shall require the written consent of the Representative for the PCS Facility and deliver (iii) the release of all or substantially all of the Collateral consisting of PCS Excluded Assets shall require the written consent of all Second Priority Secured Parties under the PCS Facility. Except as aforesaid, no such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence require any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and consent or approval by any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Secured Party.
Appears in 1 contract
Samples: Collateral Trust and Intercreditor Agreement (Rite Aid Corp)
Releases of Collateral. (a) Until Upon the First request of the Borrower made in connection with any Disposition permitted pursuant to subsections 8.6(e) and (h), PROVIDED that the Net Cash Proceeds of any such Disposition are deposited into a Collection Account or a Lockbox, the Collateral Agent shall, at the expense of the Borrower, release, without recourse, representation and warranty, its Lien Obligations Payment Dateon any such Collateral. Notwithstanding anything to the contrary, the Collateral Agent shall not have any obligation to release its Lien on any such Collateral if the First Lien Agents release a Lien on all or any portion Collateral Agent determines, in its sole discretion exercised reasonably, that the conditions of the Common Collateral in connection with: this clause (a) an Enforcement Action, (b) a sale pursuant to Section 363 of the Bankruptcy Code, or (c) a disposition of any Collateral that is permitted pursuant to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, subsection 11.21 have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliatesbeen satisfied.
(b) If The Borrower may exercise its rights under this subsection 11.21 at any time during the Lien term of Second Lien Agent this Agreement in connection with a Disposition permitted under subsections 8.6(e) or (h) by delivering to the Collateral Agent, not less than ten (10) Business Days prior to the date of the proposed Disposition, a certificate substantially in the Common form of Exhibit G hereto (the "RELEASE CERTIFICATE") executed by a Responsible Officer of the Borrower which shall refer to this subsection 11.21 and any document that the Borrower is requesting the Collateral Agent to sign in connection with any such proposed release, to be accompanied by a counterpart of any such document executed and acknowledged by all parties thereto (if any) other than the Collateral Agent (and in form for execution by the Collateral Agent). The Release Certificate shall certify (i) that as of the date of the Release Certificate, both immediately before and immediately after giving effect to such requested release (x) no Default or Event of Default has occurred and is continuing both immediately before and immediately after giving effect to such Disposition and (y) the sum of the aggregate principal amount of the Loans and the aggregate Letter of Credit Obligations do not exceed the then current Borrowing Base, (ii) the amount of such Net Cash Proceeds to be received together with, in the case of any Disposition or series of related Dispositions resulting in the receipt by the Borrower or its Subsidiaries of cash proceeds in excess of $1,000,000, a reasonably detailed statement of all cash proceeds of property or assets owed to third parties, (iii) that such Net Cash Proceeds have been, or, as a condition to the requested release, will be, deposited into a Collection Account or a Lockbox, (iv) prior to or simultaneously with such requested release by the Borrower and the delivery by the Collateral Agent of any documents relating thereto, the Funding Agent shall have received such payment, (v) if such Collateral constitutes Oil and Gas Properties, immediately prior to and after giving effect to such release, (x) if the Total Reserve Value is less than $150,000,000, Oil and Gas Properties of the Borrower and the Eligible Guarantors representing at least 85% of the PV-10 Value of the total Oil and Gas Properties of the Borrower and the Eligible Guarantors included in the most recently delivered Reserve Report are and will be subject to a perfected first priority security interest in favor of the Collateral Agent and (y) the value of such property to be released pursuant to the foregoing clause (a)this subsection 11.2, the Second Lien Agent shall promptly execute together will all other Oil and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person Gas Properties of the First Lien RepresentativeBorrower and the Eligible Guarantors released pursuant to this subsection 11.21 during the six-month period commencing January 1 and ending June 30 or commencing July 1 and ending December 31, with full power of substitution, as its true does not and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)will not exceed $5,000,000.
Appears in 1 contract
Releases of Collateral. (a) Until At such time as the First Lien Obligations Payment Dateshall have been paid in full, if the First Lien Agents release a Lien on Collateral shall be released from the Liens created hereby, and this Agreement and all or any portion obligations (other than those expressly stated to survive such termination) of the Common Collateral in connection with: (a) an Enforcement ActionAgent and each Grantor hereunder shall terminate, (b) a sale all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the Grantors. At the request and sole expense of any Grantor following any such termination, the Collateral Agent shall deliver to such Grantor any Collateral held by the Collateral Agent hereunder, and execute and deliver to such Grantor such documents as such Grantor shall reasonably request to evidence such termination. Any release of Collateral pursuant to Section 363 of the Bankruptcy Codehereto shall be without recourse to, or (c) a disposition of any warranty by, the Collateral that is permitted pursuant to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliatesAgent.
(b) If any of the Lien Collateral shall be sold, transferred or otherwise disposed of Second Lien Agent by any Grantor in a transaction permitted under Credit Agreement, then the Common Collateral is to be released pursuant to Agent, at the foregoing clause (a)request and sole expense of such Grantor, the Second Lien Agent shall promptly execute and deliver to such Grantor all releases or other documents reasonably necessary or desirable for the release of the Liens created hereby on such Collateral. At the request and sole expense of the Borrower, a Subsidiary Grantor shall be released from its obligations hereunder in the event that all the Capital Stock of such Subsidiary Grantor shall be sold, transferred or otherwise disposed of in a transaction permitted under Credit Agreement; provided that the Borrower shall have delivered to the Collateral Agent, at least five Business Days prior to the date of the proposed release, a written request for release identifying the relevant Subsidiary Grantor and a summary of the terms of the sale or other disposition in reasonable detail, including the price thereof and any expenses in connection therewith, together with a certification by the Borrower stating that such transaction is in compliance with the Credit Agreement and the other Loan Documents. Any release of Collateral pursuant hereto shall be without recourse to, or warranty by, the Collateral Agent.
(c) The Collateral shall be released in whole or in part from the Liens created hereby upon the occurrence of any event described in Section 8.08 of the Credit Agreement. At the request and sole expense of any Grantor following any such termination, the Collateral Agent shall deliver to such Grantor any Collateral held by the Collateral Agent hereunder, and execute and deliver to such Grantor such documents and instruments and shall take as such further actions as the First Lien Representative Grantor shall reasonably request to evidence any such termination. Any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment DateCollateral pursuant hereto shall be without recourse to, or warranty by, the Second Lien Collateral Agent.
(d) Upon certification by any Grantor to the Collateral Agent hereby appoints that the First Lien Representative and maker of any officer or duly authorized person of Pledged Note has satisfied such maker’s obligations under such Pledged Note in full, the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in Collateral Agent shall promptly return such Pledged Note to the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, address specified by such Grantor for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)return.
Appears in 1 contract
Releases of Collateral. (a) Until Upon the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or request of any portion of the Common Collateral Loan Party made in connection with: (a) an Enforcement Actionwith any sale, (b) a sale pursuant to Section 363 of the Bankruptcy Code, or (c) a disposition of any Collateral that is permitted pursuant to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure transfer or other disposition of any Common Collateral permitted pursuant to any Enforcement Action is deemed to be clauses (B) or (C) of Section 7.02(d)(i i) of this Agreement (a permanent repayment "Permitted --------- Disposition"), the Collateral Agent shall, at the expense of the First Loan Parties, ----------- promptly release, without recourse, representation and warranty, its Lien Obligations on any such Collateral. Notwithstanding anything to the contrary, the Collateral Agent shall not have any obligation to release its Lien on any such Collateral if the Collateral Agent determines, in its sole discretion exercised reasonably, that the conditions of this subsection (or any DIP Financing, as applicableb) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does of Section 12.18 have not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliatesbeen satisfied.
(b) If The Loan Parties may exercise their rights under this Section 12.18 at any time during the Lien term of Second Lien Agent this Financing Agreement in connection with a Permitted Disposition by delivering to the Collateral Agent, not less than five Business Days prior to the date of the proposed Permitted Disposition and release, a certificate substantially in the Common Collateral is form of Exhibit K hereto (the "Release certificate") of the chief executive officer of the Company ------------------- which shall refer to this Section 12.18, identify the assets proposed to be released pursuant sold or disposed of and any documents that the Loan Parties are requesting the Collateral Agent to sign in connection with any such proposed release, and be accompanied by a counterpart of any such documents executed and acknowledged by all parties thereto (if any) other than the Collateral Agent (and in form for execution by the Collateral Agent) certifying, as of the date of the Release Certificate, that (i) both immediately before and immediately after giving effect to such requested release, no Default or Event of Default shall have occurred and be continuing, (ii) the sale, transfer or disposition is made in compliance with Section 7.02(d)(ii) hereof, and (iii) if the Net Proceeds of such Permitted Disposition has been made or, as a condition to the foregoing clause requested release, will be made to the Administrative Agent, provided that in the event that the Release Certificate states that the Borrowers are required to make a payment of such Net Proceeds, (a)A) such Release Certificate shall contain a calculation of the amount of such payment and (B) prior to or simultaneously with the release requested by the Loan Parties and the delivery by the Collateral Agent of any documents relating thereto, the Second Lien Administrative Agent shall promptly execute and deliver have received such release documents and instruments and shall take such further actions as payment within two Business Days after receipt by the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)applicable Borrower.
Appears in 1 contract
Releases of Collateral. (a) Until If in connection with:
(i) the First Lien Obligations Payment Dateexercise of the DIP Agent's remedies in respect of the Common Collateral provided for in Section 3.1, if including any sale, lease, exchange, transfer or other disposition of such Common Collateral in connection with the First Lien Agents exercise of foreclosure or other remedies under the Uniform Commercial Code (or any similar law of any applicable jurisdiction);
(ii) any sale, lease, exchange, transfer or other disposition of Common Collateral permitted under the terms of the DIP Credit Agreement, the Standstill Agreement and the Orders (whether or not an Event of Default has occurred and is continuing); or
(iii) any agreement between the DIP Agent and any of the Obligors to release a the DIP Agent's Lien on all or any portion of the Common Collateral in connection with: (a) an Enforcement ActionCollateral, (b) a sale pursuant to Section 363 which release is not otherwise prohibited by the terms of the Bankruptcy CodePre-Petition Lender Documents, the Standstill Agreement and the Adequate Protection Stipulation; the DIP Agent, for itself or (c) a disposition on behalf of any Collateral that is permitted pursuant to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent DIP Lenders, releases any of its Liens on any part of the Common Collateral (or any Guarantor from its obligations under its guaranty of the DIP Lender Claims), the Liens, if any, of the Pre-Petition Agent, for itself or for the benefit of each of the Pre-Petition Lenders, on such Common Collateral will be(and the obligations, except as otherwise provided belowif any, automatically of such Guarantor under its guaranty of the Pre-Petition Lender Claims) shall be automatically, unconditionally and simultaneously released and the Pre-Petition Agent, for itself or on behalf of any such Pre-Petition Lender, promptly shall execute and deliver to the same extent (it being understood that DIP Agent or the Second Lien applicable Obligor such termination statements, releases and other documents as the DIP Agent shall still, subject or such Obligor may request to the terms of this Agreement, have a security interest with respect to the proceeds of effectively confirm such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliatesrelease.
(b) If The Pre-Petition Agent, for itself and on behalf of each of the Lien of Second Lien Agent in the Common Collateral is to be released pursuant to the foregoing clause (a)Pre-Petition Lenders, the Second Lien Agent shall promptly execute hereby irrevocably constitutes and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien RepresentativeDIP Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney and authority in the place and stead of the Second Lien Agent and in the name of the Second Lien Pre-Petition Agent or in the First Lien Representative’s DIP Agent's own name, from time to time, time in the First Lien Representative’s sole DIP Agent's discretion, for the purposes purpose of carrying out the terms of this Section 5.25.1, to take any and all appropriate action and to execute and deliver any and all documents and instruments as which may be reasonably necessary or desirable to accomplish the purposes of this Section 5.25.1, including, without limitation, any financing statements, endorsements, assignments, releases endorsements or other documents instruments or instruments transfer or release; provided that this Section 5.1 shall not be construed as preventing the Pre-Petition Agent from asserting any rights to consent to any sale or disposition of transfer (which appointmentCommon Collateral in accordance with the Pre-Petition Lender Documents, being coupled with an interest, is irrevocable)the Standstill Agreement and the Orders.
Appears in 1 contract
Samples: Intercreditor and Subordination Agreement (Exide Corp)
Releases of Collateral. The Liens securing the Notes and the Note Guarantees will, automatically and without the need for any further action by any Person be released:
(a) Until in whole or in part, with the consent of the requisite holders in accordance with Article IX, including consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes;
(b) in whole, upon:
(i) Discharge of this Indenture under Section 8.8 hereof; or
(ii) a legal defeasance or covenant defeasance of this Indenture under Article VIII hereof;
(iii) upon payment in full of principal, interest and all other Obligations on the Notes issued under this Indenture;
(c) in whole or in part and in accordance with the Intercreditor Agreement, in connection with a sale or other disposition of the Collateral
(i) in connection with an Enforcement Action (as defined in the Intercreditor Agreement) by the First Lien Agent;
(ii) any disposition of Collateral permitted under the First Lien Documents as in effect on the Issue Date, other than in connection with a Discharge of First Lien Obligations or after and during the continuance of any Event of Default;
(iii) consented to by the First Lien Agent after the occurrence of an event of default under the First Lien Credit Documents in connection with good faith efforts by First Lien Agent to collect the First Lien Obligations Payment Date, if through the First Lien Agents release a Lien on all or any portion of the Common Collateral in connection with: (a) an Enforcement Action, (b) a sale pursuant to Section 363 of the Bankruptcy Code, or (c) a disposition of any Collateral that is permitted pursuant to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied being used to permanently repay retire such Debt and cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so repaid; provided that, in each case, the First Lien Agent has released its Liens on the applicable Collateral;
(d) in part, as to any asset constituting Collateral
(i) that is sold or otherwise disposed of by the Issuer or any of the Guarantors (other than any such sale to the Issuer or a Guarantor) in a transaction permitted under Section 4.10 and the Security Documents (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 Permitted Additional Pari Passu Obligations then secured by that asset (including all commitments thereunder) are released (other than in connection with a Discharge of First Lien Obligations or after and during the continuance of an Event of Default);
(ii) that is cash withdrawn from deposit accounts for any purpose not prohibited under this Indenture or the Security Documents;
(iii) that is a Capital Interest of a Subsidiary of the Company to the extent necessary for such Subsidiary not to be subject to any requirement pursuant to Rule 3-16 or Rule 3-10 of Regulation S-X under the Exchange Act, due to the fact that such Subsidiary’s Capital Interest secures the Notes or Guarantees, to file separate financial statements with the Commission (or any DIP Financing, other governmental agency);
(iv) that is used to make a Restricted Payment or Permitted Investment permitted by this Indenture;
(v) that becomes Excluded Property (as applicabledefined in the Security Agreement); or
(vi) that is otherwise released in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financingwith, and as applicable) expressly provided for purposes hereof), (2) such sale is conducted in accordance with applicable lawwith, this Indenture and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliatesthe Security Documents.
(b) If the Lien of Second Lien Agent in the Common Collateral is to be released pursuant to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable).
Appears in 1 contract
Releases of Collateral. The Liens securing the Securities and the Guarantees will, automatically and without the need for any further action by any Person be released:
(1) in whole or in part, as applicable, as to all or any the portion of property subject to such Liens which has been taken by eminent domain, condemnation or other similar circumstances in accordance with the terms of Section 4.06;
(2) in whole upon:
(a) Until payment in full of the First Lien Obligations Payment Dateprincipal of, together with accrued and unpaid interest (including Additional Interest, if any) on, the First Lien Agents release a Lien on Securities and all other Obligations under this Indenture, the Guarantees and the Security Documents that are due and payable at or any portion of prior to the Common Collateral in connection with: time such principal, together with accrued and unpaid interest (a) an Enforcement Actionincluding Additional Interest, if any), are paid;
(b) a sale pursuant to Section 363 satisfaction and discharge of the Bankruptcy Code, or this Indenture as set forth under Article 8; or
(c) a disposition of any Collateral that is permitted pursuant to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms legal defeasance or covenant defeasance of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, Indenture as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and set forth under Article 8;
(3) such Enforcement Actionin part, sale as to any property that (a) is sold, transferred or disposition does not result otherwise disposed of by the Company or any Guarantor (other than to the Company or another Guarantor) in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates.
(b) If transaction not prohibited by this Indenture at the Lien of Second Lien Agent in the Common Collateral is to be released pursuant to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release time of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer transfer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2disposition, including, without limitation, as a result of a transaction of the type permitted under Sections 4.06 and 5.01 or (b) is owned or at any financing statementstime acquired by a Guarantor that has been released from its Guarantee, endorsementsconcurrently with the release of such Guarantee;
(4) as to property that constitutes all or substantially all of the Collateral securing the Securities, assignmentswith the consent of each Holder of the Securities and each holder of any Permitted Additional Pari Passu Obligations outstanding;
(5) as to property that constitutes less than all or substantially all of the Collateral securing the Securities, releases with the consent of the Holders of at least 66 2/3% of the aggregate principal amount of Securities and any Permitted Additional Pari Passu Obligations outstanding;
(6) as to any MTBE Assets (including the Capital Stock of any Permitted MTBE Joint Venture) subject to a security interest granted under a mortgage, security agreement or other documents security interest in favor of the Collateral Agent, upon the earlier of (a) the Company’s written request and (b) the disposition of such MTBE Asset;
(7) as to (A) any Capital Stock of an Unrestricted Subsidiary or any MTBE Subsidiary that is a Restricted Subsidiary or (B) the real property upon which the MTBE Assets are situated, upon (i) the release of such Capital Stock or real property, as applicable, from the security interest granted pursuant to the ABL Security Documents, in each case other than in connection with a Discharge of ABL Obligations and (ii) solely with respect to such real property, the Collateral Agent’s receipt from the Company of an Officers’ Certificate certifying that the release of such real property does not materially adversely affect or impair (1) the business operations of the Company and its Restricted Subsidiaries as a whole or (2) the validity or priority of the Lien of the Security Documents on the balance of the Mortgaged Property; and
(8) in part or in whole, in accordance with the applicable provisions of the Security Documents and the Intercreditor Agreement. In addition, to the extent necessary and for so long as required for such Guarantor not to be subject to any requirement pursuant to Rule 3-16 of Regulation S-X under the Securities Act to file separate financial statements with the SEC (or any other governmental agency), the Capital Stock and other securities of any Guarantor shall not be included in the Collateral with respect to the Securities (or any Permitted Additional Pari Passu Obligations outstanding) so affected and shall not be subject to the Liens securing such Securities and any Permitted Additional Pari Passu Obligations. Upon receipt of an Officers’ Certificate from the Company as described in Section 11.04 below, and any necessary or proper instruments of transfer (which appointmenttermination, being coupled with an interestsatisfaction or release prepared by the Company, is irrevocable)the Collateral Agent shall execute, deliver or acknowledge such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the Security Documents or the Intercreditor Agreement.
Appears in 1 contract
Samples: Indenture (TPC Group Inc.)
Releases of Collateral. (a) Until the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or any portion Within three (3) business days of the Common request by CNB, Madryn shall execute and deliver such termination statements and releases as CNB shall reasonably request to release the Lien or security interest of Madryn in the subject CNB Priority Collateral in connection with: with a disposition of such Collateral (aand shall be deemed to have consented to such disposition) provided that:
(i) CNB also is releasing (or foreclosing) its Liens on the subject CNB Priority Collateral;
(ii) the sale or disposition is made to a third party on an arm’s length basis;
(iii) such sale or disposition (X) is permitted by the terms of the Loan Agreements, (Y) occurs pursuant to an Enforcement Action, (b) a sale pursuant to Section 363 of the Bankruptcy CodeAction by CNB, or (cZ) a disposition occurs after an Event of any Collateral that is permitted pursuant to Default with the First Lien Documents and consent of CNB; and
(iv) the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest with respect to the net proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) CNB Claim and to reduce the commitments thereunder in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant an amount equal to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliatesprepayment.
(b) If Within three (3) business days of the Lien of Second Lien Agent in the Common Collateral is to be released pursuant to the foregoing clause (a)request by Madryn, the Second Lien Agent CNB shall promptly execute and deliver such release documents termination statements and instruments and shall take such further actions releases as the First Lien Representative Madryn shall reasonably request to evidence any release the Lien or security interest of CNB in the subject Madryn Priority Collateral in connection with a disposition of such Lien described in paragraph Collateral (a). Until and shall be deemed to have consented to such disposition) provided that:
(i) Madryn also is releasing (or foreclosing) its Liens on the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer subject Madryn Priority Collateral;
(ii) such sale or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out disposition (X) is permitted by the terms of this Section 5.2the Loan Agreements, (Y) occurs pursuant to take any and all appropriate action an Enforcement Action by Madryn, or (Z) occurs after an Event of Default with the consent of Madryn; and
(iii) the net proceeds of such disposition are applied to permanently repay the Madryn Claim and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable reduce the commitments thereunder in an amount equal to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)such prepayment.
Appears in 1 contract
Releases of Collateral. (ai) Until If any Collateral (A) shall be sold, transferred, or otherwise disposed of by any Obligor to a Person that is not an Obligor in a transaction permitted by the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or any portion of the Common Collateral in connection with: (a) an Enforcement Action, (b) a sale pursuant to Section 363 of the Bankruptcy CodeCredit Agreement, or (cB) a disposition of any Collateral that is permitted pursuant to the First Lien Documents and the Second Lien Documentsbecomes Excluded Property, then any Lien of the Second Lien Agent on such Common Collateral will bethen, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses foregoing clauses (a), (bg)(i)(A) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates.
(b) If the Lien of Second Lien Agent in the Common Collateral is to be released pursuant to the foregoing clause (ag)(i)(B), the Second security interest and Lien Agent granted hereby in the Collateral so sold, transferred or otherwise disposed of or which becomes Excluded Property shall be automatically terminated and be fully and irrevocably released and the Collateral Agent, at the request and sole expense of such Obligor, shall promptly execute and deliver to such release documents Obligor all releases and instruments other documents, and shall take such further actions other action, reasonably necessary for the release of the security interests and Liens created hereby, or by any other Collateral Document, on such Collateral, and, to the extent applicable, assign, transfer and deliver to the Obligors, such of the applicable Collateral as may be in possession of the First Lien Representative Collateral Agent.
(ii) The Collateral Agent may release any of the Pledged Equity from this Agreement or may substitute any of the Pledged Equity for other Pledged Equity without altering, varying or diminishing in any way the force, effect, lien, pledge or security interest of this Agreement as to any Pledged Equity not expressly released or substituted, and this Agreement shall continue as a first priority lien on all Pledged Equity not expressly released or substituted.
(iii) Upon the consummation of any transaction permitted by the Credit Agreement or otherwise in accordance with the Loan Documents, in each case, that would result in an Obligor ceasing to be a Loan Party, the obligations hereunder of such Obligor shall be automatically, fully and irrevocably terminated and any security interests and Liens created hereunder or by any other Collateral Document in the Collateral owned by such former Obligor shall be automatically, fully and irrevocably released, and the Collateral Agent, at the request and sole expense of the remaining Obligors, shall promptly execute and deliver to such former Obligor or the Borrower all releases and other documents, and take such other action, reasonably request necessary to evidence any the release of such Lien described in paragraph (a). Until former Obligor from its obligations hereunder and the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person release of the First Lien Representativesecurity interests and Lxxxx created hereunder, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to timeby any other Collateral Document, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Collateral owned by such former Obligor.
Appears in 1 contract
Samples: Delayed Draw Bridge Credit Agreement (Spirit AeroSystems Holdings, Inc.)
Releases of Collateral. In connection with any proposed sale, assignment, transfer, or other disposition of Collateral, the Company and the Debtors with an interest in such Collateral may deliver a Release Notice to the Collateral Trustee which the Collateral Trustee shall promptly distribute to the holders of Secured Obligations under the Principal Bank Facility and the Principal L/C Facility. If within 15 days after the receipt of such Release Notice the Collateral Trustee shall not have received a certificate in writing from any holder of Secured Obligations under the Principal Bank Facility or the Principal L/C Facility stating that the release of such Collateral is improper because (a) Until the First Lien Obligations Payment Date, if release of such Collateral is not permitted under the First Lien Agents release a Lien on all or any portion applicable terms of the Common Collateral in connection with: (a) an Enforcement Action, Principal Bank Facility or the Principal L/C Facility or has not been consented to by the Required Decision Group or (b) a sale pursuant to Section 363 the intended application of the Bankruptcy Code, or (c) a disposition of any Collateral that is permitted pursuant to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except is not in accordance with the applicable requirements of Section 2.04(c) of the Principal Bank Facility in effect on the date hereof or Section 5.2(e) of the Principal L/C Facility in effect on the date hereof; then the Collateral Trustee shall, to the extent applied to First Lien Obligations requested in accordance with Section 5.1); providedthe Release Notice, that in each case release the Liens of the releases Collateral Trustee in such Collateral. If the Collateral Trustee receives such a certification within such period, the Liens will not be released and the Collateral Trustee will not take any actions requested under the Release Notice until (i) such certificate shall be withdrawn in writing by First the holder of Secured Obligations which shall have delivered the same to the Collateral Trustee or (ii) until the Collateral Trustee shall have received a final order of a court of competent jurisdiction directing it to release the Liens of the Collateral Trustee in such Collateral. Upon the effectiveness of any Release Notice, the Collateral Trustee shall at the request of the Company execute a partial release of Lien Agents in subclauses (a)of the Security Documents and such instruments, (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financingincluding UCC-3 amendments, as applicable) in accordance with Section 5.1 (it being acknowledged that are necessary to partially release any credit bid by either First Lien Agent in any foreclosure documents constituting public notice of the Security Documents and the Liens granted thereunder and shall assign and transfer, or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed cause to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable lawassigned and transferred, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrowershall deliver, or any of their affiliates.
(b) If cause to be delivered, to the applicable Debtors, all property thereof then held by the Collateral Trustee in which the Lien of Second Lien Agent in the Common Collateral is to be released pursuant to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Trustee has been released.
Appears in 1 contract
Samples: Collateral Trust Agreement (Williams Companies Inc)
Releases of Collateral. (a) Until The Administrative Agent may (and is hereby irrevocably authorized by each Lender to), upon the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or any portion request of the Common Collateral in Borrower, release any pledge of Equity Interests issued by any Subsidiary if such Subsidiary is no longer a Material Subsidiary. In connection with: (a) an Enforcement Action, (b) a sale with any termination or release pursuant to Section 363 this Section, the Administrative Agent shall (and is hereby irrevocably authorized by each Lender to) execute and deliver to the Borrower, at the Borrower’s expense, all documents that the Borrower shall reasonably request to evidence such termination or release. Any execution and delivery of the Bankruptcy Code, or (c) a disposition of any Collateral that is permitted documents pursuant to this Section shall be without recourse to or warranty by the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliatesAdministrative Agent.
(b) If Notwithstanding anything to the contrary in any Loan Document, the Collateral and any other collateral security for the Obligations shall automatically be released, and the Administrative Agent shall release such Collateral or other collateral security, from any security interest or Lien created by the Loan Documents (i) upon the Disposition of Second Lien Agent in such Collateral to any Person other than the Common Collateral is to be released Borrower pursuant to a transaction not restricted by this Agreement (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited hereby) (and the foregoing clause (aAdministrative Agent may rely conclusively on a certificate to that effect provided to it by the Borrower upon its reasonable request without further inquiry), (ii) if the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described is approved, authorized or ratified in paragraph writing by the Required Lenders (aexcept in the case of a release of all or substantially all of the Collateral (other than in connection with a transaction not restricted by Section 6.03). Until , which release shall require the First Lien Obligations Payment Datewritten consent of all Lenders), or (iii) as expressly provided in any Collateral Document; and the Second Lien Administrative Agent hereby appoints shall then deliver to the First Lien Representative Borrower all Collateral and any officer or duly authorized person of other collateral held under the First Lien Representative, with full power of substitution, as its true Loan Documents and lawful attorney-in-fact with full irrevocable power of attorney related documents in the place and stead custody or possession of such Person and, if reasonably requested by the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own nameBorrower, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to shall execute and deliver (to the extent applicable) to the Borrower for filing in each office in which any financing statement relative to such collateral, or any part thereof, shall have been filed, a termination statement under the UCC or like statute in any other jurisdiction releasing or evidencing the release of the Administrative Agent’s interest therein, and all such other documents and instruments as the Borrower may reasonably request at the cost and expense of the Borrower. The Administrative Agent shall not be reasonably necessary or desirable liable for any action taken by it at the reasonable request of the Borrower pursuant to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable9.15(b).
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Releases of Collateral. Each Borrower may, upon not less than two (2) Business Days’ prior written notice to the Agent, request the Agent to release its security interest in one or more Assets included in the Collateral to the extent such release is necessary in connection with:
(a) Until any repurchase or substitution of such Assets pursuant to and in accordance with the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or any portion of the Common Collateral in connection with: (a) an Enforcement Action, Sale and Servicing Agreement; or
(b) any sale of Purchased Policies to a sale Person that is not an Affiliate of any GWG Party (each such Person, a “Third Party Buyer”) on arm’s length terms; provided that no such release pursuant to Section 363 this clause (b) shall be made unless:
(i) the Agent receives payment in full and in cash of the Bankruptcy Codesales price for such Purchased Policies (the “Sale Price”), which Sale Price is not less than the greater of (A) the Value of such Purchased Policies and (B) the sum of (1) (x) in the case of a Hedged Policy, 95%, and (y) in the case of an Unhedged Policy, 70%, of the aggregate Collateral Balance of such Purchased Policies plus (2) accrued and unpaid Facility Fees and Interest on a principal amount of Advances equal to such Collateral Balance (calculated by reference to the Facility Rate);
(ii) neither the Seller nor any of its Affiliates receives any consideration for such sale, other than the Sale Price remitted to the Agent pursuant to clause (i);
(iii) each such Purchased Policy is sold by the applicable Borrower, Securities Intermediary or the related Titling Trust to such Third Party Buyer without recourse, such that neither such Titling Trust, Securities Intermediary nor such Borrower is required to (cA) a disposition make or provide any representations, warranties, indemnities or other undertakings of any Collateral that is permitted pursuant kind to the First Lien Documents and the Second Lien Documents, then such Third Party Buyer or any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent other Person (it being understood and agreed that the Second Lien Agent Seller may make or provide any such representations, warranties, indemnities or other undertakings as necessary or appropriate, so long as no Borrower, Securities Intermediary or Titling Trust has any liability with respect thereto) or (B) execute any documents other than an assignment agreement between such Borrower, Securities Intermediary or Titling Trust and such Third Party Buyer in a form that has been approved in writing by the Agent; and
(iv) no Liquidity Trigger Event, Borrowing Base Deficiency, Eligible Death Benefit Deficiency, or other Event of Default or Potential Event of Default has occurred and is continuing or would result therefrom. The release of the Agent’s security interest in any such Asset shall still, be subject to the terms Agent’s receipt of this Agreement, have a security interest all amounts payable by the Seller in connection with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action repurchase or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates.
(b) If the Lien of Second Lien Agent in the Common Collateral is to be released substitution pursuant to the foregoing Sale and Servicing Agreement (in the case of a release pursuant to clause (a)) or from the Seller or the Third Party Buyer (in the case of a release pursuant to clause (b)). Upon the written request of the Borrowers following the Agent’s receipt of such amounts, and at the cost and expense of the Borrowers, the Second Lien Agent shall promptly deliver and, if necessary, execute and deliver such release documents and instruments and shall take such further actions documents as the First Lien Representative shall Borrowers may reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)effectuating such release.
Appears in 1 contract
Releases of Collateral. (a) Until the First Lien The Notes Obligations Payment Datewill no longer be required to be secured by Liens on Collateral, if the First Lien Agents release a Lien on all or any portion of the Common Collateral in connection with: (a) an Enforcement Action, (b) a sale pursuant to Section 363 of the Bankruptcy Code, or (c) a disposition of any Collateral that is permitted pursuant to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of the Intercreditor Agreement and the other Collateral Documents, the Liens securing the Notes Obligations will be released:
(1) in whole, upon the full and final payment and performance of all Notes Obligations;
(2) in part, with respect to any asset constituting Collateral, if such Collateral is sold or otherwise disposed of (x) to the Company or a Guarantor in a transaction permitted by the terms of this AgreementIndenture; provided that such Collateral shall be pledged as Collateral under the Collateral Documents contemporaneously with such partial release of Liens and sale or disposition to the Company or a Guarantor, have in accordance with the requirements of this Indenture and the Collateral Documents; or (y) to a security interest Person that is not (either before or after giving effect to such transaction) the Company or a Guarantor in a transaction that is not prohibited by this Indenture, subject to compliance with Section 4.10 (other than the provisions thereof relating to the future use of the proceeds of such sale or other disposition), and, in each case, the Company has delivered to the First Lien Collateral Agent and the Trustee an Officers’ Certificate certifying to such effect and Opinion of Counsel (with customary assumptions and qualifications for such types of opinion); provided that (i) pending its application or use in compliance with Section 3.08(b), 3.08(c) or 4.10, as applicable, any cash received from a disposition of Collateral shall be deposited in a deposit account controlled by the First Lien Collateral Agent and held as Collateral and, from such deposit account, the applicable Collateral Grantor may withdraw funds to deploy the proceeds of an Asset Sale in compliance with Section 3.08(b), 3.08(c) or 4.10, as applicable, and (ii) to the extent that any Collateral is sold or otherwise disposed of in accordance with the terms of Section 4.10, the non-cash consideration (including any Designated Noncash Consideration) received shall be pledged as Collateral under the Collateral Documents contemporaneously with such sale or disposition, in accordance with the requirements of this Indenture and the Collateral Documents;
(3) in whole, upon Legal Defeasance pursuant to Section 8.02, Covenant Defeasance pursuant to Section 8.03 or Discharge pursuant to Section 8.08;
(4) in part, with respect to the proceeds assets of such Common Collateral except to the extent applied to First Lien Obligations any Guarantor that is released from its Guarantee in accordance with Section 5.1); provided10.02;
(5) in whole or in part, that in each case with the consent of the releases by First Lien Agents requisite Holders as provided in subclauses Section 9.02; or
(a), (b6) and (c), (1) the net cash proceeds of such Enforcement Action in whole or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financingin part, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates.
(b) If the Lien of Second Lien Agent provided in the Common Intercreditor Agreement or the other Collateral is to be released pursuant to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Documents.
Appears in 1 contract
Releases of Collateral. The Liens securing the Notes and the Guarantees will, upon compliance with the conditions precedent to the release of the Collateral together with such documentation, if any, as may be required by this Indenture, automatically (with written notice to the Collateral Agent; provided, however, that failure to deliver such notice shall not affect such release) and without the need for any further action by any Person be released:
(a) Until in part, as to any property or assets constituting Collateral, at the First Lien Obligations Payment Datetime of any sale, if transfer or other disposition of such property or assets to a person that is not the First Lien Agents Issuer or a Guarantor to the extent permitted under Section 4.10; provided that, prior to or substantially concurrently with such release, all liens on such Collateral granted by such guarantor as security for the Credit Agreement, Additional Secured Obligations, pari passu lien indebtedness and junior lien indebtedness have been or will be released;
(b) in the case of a Guarantor that is released from its Guarantee with respect to the Notes pursuant to the terms of this Indenture, the release of the property and assets of such Guarantor; provided that, prior to or substantially concurrently with such release, all liens on the Collateral granted by such guarantor as security for the Credit Agreement, Additional Secured Obligations, pari passu lien indebtedness and junior lien indebtedness have been or will be released;
(c) as described under Article IX;
(d) to the extent required by the ABL Intercreditor Agreement;
(e) in part, as to any property or assets, to the extent constituting an Excluded Asset as a Lien on result of a transaction not prohibited by this Indenture;
(f) upon satisfaction and discharge of this Indenture under Section 8.2; or
(g) upon legal defeasance or covenant defeasance of this Indenture under Article VIII. Notwithstanding anything to the contrary herein, the Issuer and the Guarantors will not be required to comply with all or any portion of the Common Collateral in connection with: (aSection 314(d) an Enforcement Action, (b) a sale pursuant to Section 363 of the Bankruptcy Code, or (c) a disposition of any Collateral that is permitted pursuant to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliatesTIA.
(b) If the Lien of Second Lien Agent in the Common Collateral is to be released pursuant to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable).
Appears in 1 contract
Samples: Indenture (BlueLinx Holdings Inc.)
Releases of Collateral. The Note Liens will, automatically and without the need for any further action by any Person be released:
(a) Until the First Lien Obligations Payment Datein whole or in part, if the First Lien Agents release a Lien on as applicable, as to all or any portion of the Common Collateral in connection with: (a) an Enforcement Actionproperty subject to such Note Liens which has been taken by eminent domain, condemnation or other similar circumstances;
(b) a sale pursuant to Section 363 in whole, upon:
(i) payment in full of the Bankruptcy Codeprincipal of, accrued and unpaid interest, including additional interest, and premium, if any, on the Notes; or
(ii) satisfaction and discharge of this Indenture under Article VIII hereof;
(iii) a legal defeasance or covenant defeasance of this Indenture under Article VIII hereof;
(c) a disposition of in part, as to any property constituting Collateral that (i) is sold, transferred or otherwise disposed of by the Issuer or any Guarantor (other than to the Issuer or a Guarantor) in a transaction permitted by this Indenture and the Security Documents, at the time of such transfer or disposition, (ii) is owned or at any time acquired by a Guarantor that has been released from its Note Guarantee concurrently with the release of such Note Guarantee or (iii) at any time becomes an Excluded Asset pursuant to a transaction permitted by this Indenture;
(d) pursuant to Article a as to property that constitutes less than all or substantially all of the First Lien Collateral, with the consent of Holders of at least a majority in aggregate principal amount of the Notes then 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 sixty-six and two-thirds percent (662/3%) in aggregate principal amount of the Notes then outstanding); and
(e) in part, in accordance with the applicable provisions of the Security Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent Intercreditor Agreement (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except Note Liens will only be released to the extent applied to First Lien Obligations in accordance with Section 5.1the corresponding Credit Agreement Liens are released); provided, that in each case . A release of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is the provisions of this Indenture and the Security Documents shall not be deemed to be a permanent repayment of impair the First Lien Obligations (security under the Note Liens. Upon compliance by the Issuer or any DIP FinancingGuarantor, as applicable) for purposes hereof)the case may be, (2) such sale is conducted in accordance with applicable lawthe conditions precedent required by this Indenture and the Security Documents, and (3) such Enforcement Action, sale the Trustee or disposition does not result in a sale or transfer of Common the Collateral to any Borrower, or any of their affiliates.
(b) If the Lien of Second Lien Agent in the Common Collateral is shall promptly cause to be released pursuant and reconveyed to the foregoing clause (a)Issuer or the Guarantor, as the case may be, the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request released Collateral. Prior to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Dateeach proposed release, the Second Lien Issuer and each Guarantor will furnish to the Trustee and the Collateral Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents required by this Indenture and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Security Documents.
Appears in 1 contract
Samples: Indenture (American Woodmark Corp)
Releases of Collateral. (a) Until Upon the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or request of any portion of the Common Collateral Loan Party made in connection with: with any sale, transfer or other disposition of Collateral permitted pursuant to clauses (a) an Enforcement ActionB), (bC) or (E) of Section 7.02(d)(ii) of this Agreement (a sale "Permitted --------- Disposition"), provided that, in the case of clause (E) of Section 7.02(d)(ii), ----------- the Net Proceeds of any such Permitted Disposition are paid to the Administrative Agent pursuant to Section 363 of the Bankruptcy Code, or (c2.07(k) a disposition of any Collateral that is permitted pursuant to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest with respect the Collateral Agent shall, at the expense of the Loan Parties, promptly release, without recourse, representation and warranty, its Lien on any such Collateral. Notwithstanding anything to the proceeds of contrary, the Collateral Agent shall not have any obligation to release its Lien on any such Common Collateral except to if the extent applied to First Lien Obligations Collateral Agent determines, in accordance with Section 5.1); providedits sole discretion exercised reasonably, that in each case the conditions of the releases by First Lien Agents in subclauses (a), this subsection (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does 12.18 have not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliatesbeen satisfied.
(b) If The Loan Parties may exercise their rights under this Section 12.18 at any time during the Lien term of Second Lien Agent this Financing Agreement in connection with a Permitted Disposition by delivering to the Collateral Agent, not less than five Business Days prior to the date of the proposed Permitted Disposition and release, a certificate substantially in the Common Collateral is form of 106 Exhibit K hereto (the "Release Certificate") of the chief executive officer of ------------------- the Company which shall refer to this Section 12.18, identify the assets proposed to be released pursuant sold or disposed of and any documents that the Loan Parties are requesting the Collateral Agent to sign in connection with any such proposed release, and be accompanied by a counterpart of any such documents executed and acknowledged by all parties thereto (if any) other than the Collateral Agent (and in form for execution by the Collateral Agent) certifying, as of the date of the Release Certificate, that (i) both immediately before and immediately after giving effect to such requested release, no Default or Event of Default shall have occurred and be continuing, (ii) the sale, transfer or disposition is made in compliance with Section 7.02(d)(ii) hereof, and (iii) if the Net Proceeds of such Permitted Disposition has been made or, as a condition to the foregoing clause requested release, will be made to the Administrative Agent, provided that in the event that the Release Certificate states that the Borrowers are required to make a payment of such Net Proceeds, (a)A) such Release Certificate shall contain a calculation of the amount of such payment and (B) prior to or simultaneously with the release requested by the Loan Parties and the delivery by the Collateral Agent of any documents relating thereto, the Second Lien Administrative Agent shall promptly execute and deliver have received such release documents and instruments and shall take such further actions as payment within two Business Days after receipt by the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)applicable Borrower.
Appears in 1 contract
Releases of Collateral. The Liens securing the Notes and the Guarantees will, automatically and without the need for any further action by any Person be released:
(a) Until the First Lien Obligations Payment Datein whole or in part, if the First Lien Agents release a Lien on as applicable, as to all or any portion of the Common Collateral in connection with: (a) an Enforcement Actionproperty subject to such Liens which has been taken by eminent domain, condemnation or other similar circumstances,
(b) in whole, upon:
(i) Discharge of this Indenture under Section 8.8 hereof; or
(ii) a sale legal defeasance or covenant defeasance of this Indenture under Article VIII hereof;
(c) in part, as to any property that (i) is sold, transferred or otherwise disposed of by the Company or any Guarantor (other than to the Company or another Guarantor) in a transaction not prohibited by this Indenture, at the time of such transfer or disposition, (ii) is owned or at any time acquired by a Guarantor that has been released from its Guarantee, concurrently with the release of such Guarantee or (iii) at any time becomes an Excluded Asset pursuant to a transaction not prohibited by this Indenture;
(d) pursuant to Article IX; and
(e) in part, in accordance with the applicable provisions of the Security Documents and the Intercreditor Agreement. A release of Collateral pursuant to the provisions of this Indenture and the Security Documents shall not be deemed to impair the security under the lien of the Collateral and any Person that is required to deliver an Officers’ Certificate or Opinion of Counsel pursuant to Section 363 314(d) of the Bankruptcy Code, TIA shall be entitled to rely on the foregoing as a basis for delivery of such Officers’ Certificate or (c) a disposition Opinion of any Collateral that is permitted pursuant Counsel. Notwithstanding anything to the First Lien Documents contrary herein, the Company and the Second Lien Documents, then Guarantors will not be required to comply with all or any Lien portion of Section 314(d) of the Second Lien Agent TIA if they determine, in good faith based on such Common Collateral will beadvice of counsel, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to 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. Without limiting the generality of the foregoing, certain no-action letters issued by the Commission 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 Section 314(d) of the TIA. If any Collateral is released in accordance with any of the Security Documents (other than as permitted by this AgreementIndenture) and if the Company or the applicable Guarantor has delivered the certificates and documents required by the Security Documents, have the Trustee will determine whether it has received all documentation required by Section 314(d) of the TIA (to the extent applicable) in connection with such release. Notwithstanding any other provision of this Indenture, to the extent necessary and for so long as required for a security interest Subsidiary of the Company not to be subject to any requirement pursuant to Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) to file separate financial statements of such Subsidiary with the SEC (or any other governmental agency), the Capital Stock and other securities of such Subsidiary shall not be included in the Collateral with respect to the proceeds of Notes and shall not be subject to the Liens securing such Common Collateral except Notes and the Note Obligations in accordance with, and only to the extent applied to First Lien Obligations in accordance with provided in, each of Section 5.1); provided, that in each case 2.01 of the releases by First Lien Agents in subclauses (a), (b) Security Agreement and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment 2 of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates.
(b) If the Lien of Second Lien Agent in the Common Collateral is to be released pursuant to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a)Pledge Agreement. Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the For purposes of this Section 5.2paragraph, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments “securities” has the meaning ascribed to such term for purposes of transfer (which appointment, being coupled with an interest, is irrevocable)Rule 3-16 of Regulation S-X under the Securities Act.
Appears in 1 contract
Samples: Indenture (Jeffboat LLC)
Releases of Collateral. The Liens securing the Notes and the Guarantees will, upon compliance with the conditions precedent to the release of the Collateral together with such documentation, if any, as may be required by the Trust Indenture Act, automatically and without the need for any further action by any Person be released so long as such release is otherwise in compliance with the TIA:
(a) Until the First Lien Obligations Payment Datein whole or in part, if the First Lien Agents release a Lien on as applicable, as to all or any portion of the Common Collateral in connection with: (a) an Enforcement Actionproperty subject to such Liens which has been taken by eminent domain, (b) a sale pursuant to Section 363 of the Bankruptcy Code, condemnation or (c) a disposition of any Collateral that is permitted pursuant to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall stillother similar circumstances, subject to the terms of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case satisfaction of the releases by First Lien Agents conditions set forth in subclauses (a), (b) and (c), (1) this Indenture or the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates.Security Documents;
(b) If in whole, as to all property subject to such Liens, upon;
(i) payment in full of the Lien Accreted Value of, accrued and unpaid interest and premium on the Notes and all the Indenture Obligations; or
(ii) satisfaction and discharge of Second Lien Agent the Indenture under Section 9.01; or
(iii) Legal Defeasance or Covenant Defeasance;
(c) in part, as to any property that (a) is sold, transferred or otherwise disposed of by the Common Collateral is to be released pursuant Issuers or any Restricted Entity in a transaction not prohibited by this Indenture, at the time of such sale, transfer or disposition, to the foregoing clause extent of the interest sold, transferred or disposed of or (a)b) is owned or at any time acquired by a Guarantor that has been released from its Guarantee, concurrently with the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described Guarantee; or
(d) in paragraph part, as to property with the consent of the Trustee (a). Until with the First Lien Obligations Payment Datevote of the holders of the Notes required under Section 8.02) Notwithstanding anything to the contrary herein, the Second Lien Agent hereby appoints Issuers and the First Lien Representative and Guarantors will not be required to comply with all or any officer or duly authorized person portion of Section 314(d) of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to timeTIA if they determine, in the First Lien Representative’s sole discretiongood faith based on advice of counsel, for the purposes of carrying out that under the terms of this that section 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 5.2314(d) of the TIA is inapplicable to 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 take any contain provisions permitting the release of collateral from Liens under such indenture in the ordinary course of the issuer’s business without requiring the issuer to provide certificates and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments under Section 314(d) of transfer (which appointment, being coupled with an interest, is irrevocable)the TIA.
Appears in 1 contract
Releases of Collateral. (a) Until The Lender may release, regardless of consideration, the First Lien obligation of any Person or Persons liable for payment of any of the Obligations Payment Datesecured hereby, if or may release any part of the First Lien Agents Mortgaged Property or any other collateral now or hereafter given to secure the payment of the Obligations or any part thereof, without impairing, reducing or affecting the obligations of the Borrower or Guarantors under the Loan Documents.
(b) Within thirty (30) days of Borrower’s request, provided: (i) Borrower is not in default hereunder or under any other Loan Document(s); and (ii) no event has occurred which with the passage of time and/or the giving of notice would constitute a default hereunder or under any other Loan Document(s), Lender shall release portions of the Mortgaged Property from the lien created by the Mortgage (“Released Property”) subject to: (i) Borrower’s payment to Lender of the Release Price (as hereinafter defined) for the Released Property, (ii) in Lender’s reasonable discretion, the loan-to-value ratio based on the “as improved” disposition value of the Mortgaged Property shall not be less than sixty percent (60%) as determined in accordance with Section 2(j) of this Agreement, (iii) Borrower’s compliance with the terms and conditions set forth in Subsection 2.20(d)(ii), (iv), (v), (vi), (ix) and (x) of the Mortgage, and (iv) with respect to the release of each Sale Unit, (1) evidence that such Sale Unit shall be transferred to an Affiliate Purchaser (as defined below), (2) an assignment of the proceeds of the sale of such Sale Unit (not to exceed $30,000) after the payment of the first mortgage on such Sale Unit, and (3) a pledge of the ownership interest in the Affiliate Purchaser, subject to any assignment to the first mortgagee, each in form and with substance satisfactory to Lender in its reasonable discretion. The Release Price for the Released Property shall be $50,000 for each townhouse and condominium unit to be released from the Mortgaged Property; provided, however, that the Release Price for each townhouse and condominium unit located on the Mortgaged Property after the release of the one hundred and sixtieth (160th) unit (a “Sale Unit”) shall be $50,000 at the time of the release plus an additional $30,000 (for a total payment towards the Loan of $80,000) when such Sale Unit is sold to an Affiliate of Borrower (“Affiliate Purchaser”).
(c) Within twenty (20) days of Borrower’s request, provided: (i) Borrower is not in default hereunder or under any other Loan Document(s); and (ii) no event has occurred which with the passage of time and/or the giving of notice would constitute a default hereunder or under any other Loan Document(s), Lender shall release a Lien portion of the Mortgaged Property owned by TDS Amenities, Inc. as described on Exhibit A (the “TDS Property”), as determined by Lender in its sole discretion, from the lien created by the Mortgage subject to receipt by Lender of documentation evidencing that the TDS Property has been subdivided in a manner consistent with the documentation that is submitted to and approved by Lender prior to the release of the lien. At no cost to Lender, Lender shall cooperate with Borrower in securing the subdivision which shall be substantially in the form set forth on the swimming pool depiction as set forth on Exhibit A hereto.
(d) Notwithstanding the foregoing, within twenty (20) days of Borrower’s request, provided: (i) Borrower is not in default hereunder or under any other Loan Document(s) and (ii) no event has occurred which with the passage of time and/or the giving of notice would constitute a default hereunder or under any other Loan Document(s), Lender shall release the balance of Mortgaged Property owned by TDS Amenities, Inc. which is not the TDS Property (the “TDS Remainder Property”) from the lien created by the Mortgage subject to receipt by Lender of (1) documentation evidencing that the swimming pool on the TDS Remainder Property has been constructed, to Lender’s reasonable satisfaction, in accordance with the plans and specifications provided to Lender by Borrower and the contract submitted to Lender from Xxxxxx Pools, (2) such other documents as may be required by Lender in its reasonable discretion, (3) written evidence that the owners of all or any portion of the Common Collateral in connection with: (a) an Enforcement Actionremainder of the Mortgaged Property shall have access to, (b) a sale and the ability to use, the swimming pool constructed on the TDS Remainder Property pursuant to Section 363 of easements established by the Bankruptcy Code, or (c) a disposition of any Collateral that is permitted pursuant Borrower and reasonably acceptable to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable lawLender, and (34) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates.
(b) If the Lien of Second Lien Agent Release Price in the Common Collateral is to be released pursuant to the foregoing clause amount of Two Million Nine Hundred Thousand (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)$2,900,000) Dollars.
Appears in 1 contract
Samples: Loan and Security Agreement (American Leisure Holdings, Inc.)
Releases of Collateral. (a) Until In connection with the First Lien Obligations Payment Dateproposed sale, if the First Lien Agents release a Lien on all or any portion of the Common Collateral in connection with: (a) an Enforcement Action---------------------- assignment, (b) a sale pursuant to Section 363 of the Bankruptcy Codetransfer, or (c) a disposition of any Collateral that is permitted pursuant to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant by any Debtor (an "Asset Sale"), the Company, on behalf of such selling Debtor, shall deliver a ---------- Release Notice to the Collateral Trustee, the Senior Loan Agent and the Indenture Trustee. If, within ten (10) days after the delivery of such Release Notice, the Collateral Trustee shall not have received a written objection from either the Senior Loan Agent or the Indenture Trustee stating that the selling Debtor is not entitled under the terms of the Credit Agreement or the Indenture, as the case may be, to obtain the release of the Collateral specified in the Release Notice, then the Collateral Trustee shall provide for the release of the Liens with respect to such Collateral to the extent required by the Company in the Release Notice, provided, however, that the effective delivery of any ----------------- releases provided under this Section 2.4 shall be expressly conditioned upon the consummation of the Asset Sale to which the Release Notice relates. If, however, the Collateral Trustee receives a written objection within the aforementioned 10 day period, the Liens will not be released and the Collateral Trustee will not take any actions requested of it by the Company until such certificate shall be withdrawn in writing by the Senior Loan Agent or the Indenture Trustee, as the case may be, or until three (3) business days after the Collateral Trustee shall have received an order of a court of competent jurisdiction directing it to release the Liens of the Collateral Trustee with respect to such Collateral and no stay exists with respect to such direction or order. Upon consummation of the Asset Sale for which a release of Liens was granted hereunder, all Proceeds, including any non-cash Proceeds, received by or owing to any Enforcement Action is deemed Debtor from the sale of such released Collateral shall be immediately turned over to the Collateral Trustee, together with any necessary endorsements or instruments of assignment or transfer, for deposit in the Collateral Account and shall be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted distributed in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer the provisions of Common Collateral to any Borrower, or any of their affiliatesSection 4.4 hereof.
(b) If the Lien of Second Lien Agent in the Common Collateral is to be released pursuant to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable).
Appears in 1 contract
Samples: Collateral Trust and Intercreditor Agreement (Southwest Royalties Inc)
Releases of Collateral. (aA) Until At any time and from time to time prior to the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or any portion termination of the Common Collateral in connection with: (a) an Enforcement Action, (b) a sale Security Interests pursuant to Section 363 14, the Collateral Agent (i) may release any of the Bankruptcy Code, or (c) a disposition Collateral with the prior written consent of any Collateral that is permitted pursuant to the First Lien Documents and the Second Lien Documents, then any Lien all of the Second Lien Agent on such Common Collateral will beLenders, except as otherwise provided belowwhich consent shall not be unreasonably withheld, automatically and simultaneously released to (ii) shall release Inventory which is being sold or transferred by the same extent Borrower if the Borrower has complied with the provisions of clauses (it being understood that i), (ii) and (if required) (iii) of Section 5.7 of the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest Inventory Credit Agreement with respect to such sale or transfer. Upon any such release of Collateral, the proceeds of such Common Collateral except to Agent will, at the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case expense of the releases by First Lien Agents in subclauses (a)applicable Grantor, (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates.
(b) If the Lien of Second Lien Agent in the Common Collateral is to be released pursuant to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver to such release Grantor such documents and instruments and shall take as such further actions as the First Lien Representative Grantor shall reasonably request to evidence any the release of such Lien described in paragraph the Collateral.
(a). Until B) Subject to the First Lien Obligations Payment Dateprovisions of Section 5(C) of this Agreement, the Second Lien Agent hereby appoints Proceeds of Inventory, including accounts receivable arising from the First Lien Representative sale thereof (and any officer or duly authorized person books and records of the First Lien RepresentativeBorrower pertaining to such accounts receivable), shall automatically be released without the need for any action on the part of the Collateral Agent, upon the sale of such Inventory by the Borrower.
(C) Upon the occurrence of either of the Events of Default specified in clauses (h) or (i) of Section 6.1 of the Inventory Credit Agreement with full power respect to the Borrower (and without any further act or notice) or the giving by the Collateral Agent of substitutionan Enforcement Notice to the Borrower, as its true the automatic release set forth in Section 5(B) of this Agreement shall terminate (an "Automatic Release Termination") with respect to all Proceeds from (i) the sale of Inventory subsequent to the second Domestic Business Day after the day on which the Enforcement Notice is given or, if an Event of Default specified in clause (h) or (i) of Section 6.1 of the Inventory Credit Agreement has occurred, subsequent to the day after which such Event of Default occurs, and lawful attorney-in-fact with full irrevocable power (ii) the sale of attorney Inventory during the period after the day on which the Enforcement Notice is given to and including the second Domestic Business Day after the day on which the Enforcement Notice is given to the extent the aggregate amount of sales of Inventory during such period are not made in the place and stead ordinary course of business of the Second Lien Agent and in the name Borrower or exceed 10% of the Second Lien Agent or in Borrowing Base as of the First Lien Representative’s own name, from time to time, in date the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Automatic Release Termination occurs.
Appears in 1 contract
Samples: Inventory Credit Agreement (Bethlehem Steel Corp /De/)
Releases of Collateral. (a) Until the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or any portion of the Common Collateral in connection with: (a) an Enforcement Action, (b) a sale pursuant to Section 363 of the Bankruptcy Code, or (c) a disposition of any Collateral that is permitted pursuant to the First Lien Documents and the Second Lien Documents, then any Lien of the Second Lien Agent on such Common Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest with respect to the proceeds of such Common Collateral except to the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case of the releases by First Lien Agents in subclauses (a), (b) and (c), (1) the net cash proceeds of such Enforcement Action or disposition are applied to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliates.
(b) If the Lien of Second Lien Agent in the Common Collateral is to be released pursuant to the foregoing clause (a), the Second Lien Agent shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence any release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Date, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own nameThe Borrower may, from time to time, upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, request the Administrative Agent to release, and the Administrative Agent shall release, its security interest in one or more Pool Policies to the First Lien Representative’s sole extent such release is necessary in connection with any sale of such Pool Policy to any Person (a “Buyer”) and solely to the extent otherwise permitted hereunder and under the other Loan Documents; provided, that no such release pursuant to this Section 2.12(a) shall be made if the proposed sale of any Pool Policy would cause the Initial Policy Value thereof, together with the aggregate Initial Policy Values of any one or more other Pool Policies proposed to be sold therewith and the aggregate Initial Policy Values of any one or more other Pool Policies that were previously sold by the Borrower and/or had previously lapsed or previously been surrendered (excluding any Pool Policy that had lapsed or been surrendered in accordance with clause (b)(2)(A) of the proviso of the first sentence of Section 6.14), to exceed 5% of the Aggregate Closing Date Policy Value; provided, further, that no such release pursuant to this Section 2.12(a) shall be made without the prior written consent of the Administrative Agent unless:
(i) the Buyer has deposited into an escrow account payment in full and in cash of the sales price for such Pool Policy (the “Sale Price”) pursuant to an Eligible Sale Escrow Arrangement or the Sale Price is payable on the closing date of such sale into the Collection Account; unless otherwise agreed in writing by both the Administrative Agent and the Borrower, in their discretion, for any such Sale Price deposited pursuant to an Eligible Sale Escrow Arrangement is to be deposited into the purposes Collection Account simultaneously with the release of carrying out the Administrative Agent’s security interest in accordance with the terms of this the Eligible Sale Escrow Arrangement;
(ii) none of the Borrower, the Parent or any of their respective Affiliates receives any consideration for such sale, other than the Sale Price remitted to the Collection Account pursuant to clause (i);
(iii) each such Pool Policy is sold by the Borrower to such Buyer without recourse, provided that so long as the related purchase agreement contains a covenant of the Buyer thereunder (and each other counterparty thereto) consistent with the covenant contained in Section 5.210.23, the Borrower may make or provide any representations, warranties, indemnities or other undertakings of any kind required to be made in connection with such sale to such Buyer that the Borrower in good faith determines are reasonable, and shall not be required to make or provide any other representations, warranties, indemnities or other undertakings of any kind in connection with such sale, except for an agreement to refrain from conveying or pledging any right that would impair the rights of the Buyer in such Pool Policy;
(iv) no Default or Event of Default has occurred and is continuing or would result therefrom;
(v) such sale is made on arm’s length terms and to a Person that is not an Affiliate of any Loan Party; and
(vi) the LTV Percentage immediately after giving effect to such sale will not exceed the LTV Percentage immediately prior to such sale.
(b) The Administrative Agent’s security interest in any such Pool Policy shall be automatically released upon the receipt in the Collection Account of the Sale Price in connection with such sale. Upon the written request of the Borrower following the receipt of such amounts, and at the cost and expense of Borrower, the Administrative Agent shall deliver and, if necessary, execute such instruments and documents as the Borrower may reasonably request for purposes of effectuating such release. Notwithstanding the foregoing, if such Pool Policy is a Sale Escrowed Policy, the release of the Administrative Agent’s security interest in any such Pool Policy shall be subject to the deposit of all amounts payable by the Buyer in the escrow account designated under such Eligible Sale Escrow Arrangement, and, prior to such deposit, the Administrative Agent shall deliver to the Eligible Escrow Agent and, if necessary, and at the cost and expense of the Borrower, execute the related escrow agreement and such instruments and documents as the Borrower may reasonably request for purposes of effectuating such release, to take be held in escrow pursuant to such Eligible Sale Escrow Arrangement (except as provided in clause (i) of the proviso of Section 2.12(a) above) until the Sale Price for such Policy is deposited into the Collection Account.
(c) Amounts on deposit in the Collection Account representing the Sale Price for the sale of a Pool Policy shall be distributed in accordance with Section 2.4(b)(i) or (ii) or 8.3, as applicable. For the avoidance of doubt, no Prepayment Premium shall be payable in connection with any and all appropriate action and payment of principal made with any such amount pursuant to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)such a section.
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Releases of Collateral. At any time during which no Triggering Event has occurred and is continuing:
(a) Until the First Lien Obligations Payment Date, if the First Lien Agents release a Lien on all or If any portion Collateral is to be disposed of the Common Collateral in connection with: (a) an Enforcement Action, (b) a sale pursuant to Section 363 of the Bankruptcy Code, or (c) a disposition of any Collateral that is permitted pursuant to by the First Lien Senior Debt Documents and the Second Lien Priority Debt Documents, then any Lien the Liens in favor of the Second Lien Agent on such Common Secured Parties under the Collateral will be, except as otherwise provided below, automatically and simultaneously released to the same extent (it being understood that the Second Lien Agent shall still, subject to the terms of this Agreement, have a security interest Documents with respect to such Collateral (but not the proceeds thereof) will be released automatically upon consummation of such Common disposition, without the need for any consent or approval by any Secured Party, and the Second Priority Collateral except to Trustee, Senior Collateral Agent, the extent applied to First Lien Obligations in accordance with Section 5.1); provided, that in each case Representative for the holders of the releases by First Lien Agents in subclauses (a)10.50% Notes and the Second Priority Representatives, (b) and (c)at the expense of Rite Aid, (1) the net cash proceeds of shall execute such Enforcement Action or disposition documents as are applied reasonably necessary to permanently repay the First Lien Obligations (or any DIP Financing, as applicable) in accordance with Section 5.1 (it being acknowledged that any credit bid by either First Lien Agent in any foreclosure or other disposition of any Common Collateral pursuant to any Enforcement Action is deemed to be a permanent repayment of the First Lien Obligations (or any DIP Financing, as applicable) for purposes hereof), (2) effectuate such sale is conducted in accordance with applicable law, and (3) such Enforcement Action, sale or disposition does not result in a sale or transfer of Common Collateral to any Borrower, or any of their affiliatesrelease.
(b) If the The Lien of Second Lien any Collateral Document may, at any time, be released in whole or in part by the Senior Collateral Agent (in the Common case of the Senior Lien) or the Second Priority Collateral is to be released Trustee (in the case of the Second Priority Lien) pursuant to written directions signed by the foregoing clause Majority Senior Parties (aor the Senior Collateral Agent on behalf of the Majority Senior Parties) or the Second Priority Instructing Group, respectively; provided that the release of all or substantially all of the Senior Collateral shall require the written consent of all Senior Secured Parties and the release of all or substantially all of the Second Priority Collateral shall require the written consent of all Second Priority Secured Parties; provided, further, however, that to the extent the Senior Bank Obligations, the 10.5% Note Obligations, the Synthetic Lease Obligations, the Additional Senior Second Priority Debt Obligations, if any, the Exchange Note Obligations, the Additional Second Priority Debt Obligations, if any, the Replacement Senior Second Priority Debt Obligations, if any, or the Replacement Second Priority Debt Obligations, if any, are paid in full (and any commitments related thereto are terminated), the Second Lien Agent consent of the related Secured Parties shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Lien Representative shall reasonably request to evidence not be required for any release, including a release of such Lien described in paragraph (a). Until the First Lien Obligations Payment Dateall or substantially all, the Second Lien Agent hereby appoints the First Lien Representative and any officer or duly authorized person of the First Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Lien Agent and in the name of the Second Lien Agent or in the First Lien Representative’s own name, from time to time, in the First Lien Representative’s sole discretion, for the purposes of carrying out the terms of this Section 5.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be reasonably necessary or desirable to accomplish the purposes of this Section 5.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable)Collateral securing such obligations.
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Samples: Collateral Trust and Intercreditor Agreement (Rite Aid Corp)