Guarantors. (a) Within 5 Business days following the date on which any of the following conditions applies to any Subsidiary or Unconsolidated Affiliate that is not already a Guarantor, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate to execute and deliver an Accession Agreement and the items that would have been delivered under subsections (iv) through (viii) and (xiii) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement Date: (i) such Person Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or (ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset Value. (b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guaranty, and upon receipt of such written request by the Administrative Agent, such Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying that: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents.
Appears in 1 contract
Guarantors. (a) Within 5 Business days following If, during any fiscal quarter, (i) any Person becomes a Material Subsidiary (other than an Excluded Subsidiary, a Foreign Subsidiary or any Domestic Subsidiary that has no material assets other than stock and securities of one or more Foreign Subsidiary), (ii) any Material Subsidiary ceases to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement pursuant to this Section or (iii) any Person provides a Guaranty of the Senior Notes, then, not later than the date on which any of the following conditions applies Compliance Certificate is required to any Subsidiary be delivered pursuant to Section 9.3. with respect to such fiscal quarter (or Unconsolidated Affiliate that if such fiscal quarter is not already a Guarantorthe fourth fiscal quarter, the Parent and fiscal year ending on the date of such fiscal quarter), the Borrower shall cause such Material Subsidiary or Unconsolidated Affiliate to execute deliver to the Administrative Agent each of the following in form and deliver substance reasonably satisfactory to the Administrative Agent: (y) an Accession Agreement executed by such Subsidiary and (z) the items that would have been delivered under subsections (iv) through (viii) and (xiiixv) of Section 5.1.(a6.1.(a) and under Section 6.1.(f) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor Material Subsidiary (other than an Excluded Subsidiary, a Foreign Subsidiary or any Domestic Subsidiary that has no material assets other than stock and securities of one or more Foreign Subsidiary) on the Agreement Date:
(i) such Person Guarantees. As provided in Section 4.1.(d), or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of a Property that is to become an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate Unencumbered Property and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person that is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including a Subsidiary that is not a Guarantor shall not be considered to be an Unencumbered Property until such RD Entity) does not exceed 10.0% of time as the Unencumbered Asset Value.Administrative Agent shall have received the items referred to in Section 4.1.(d).
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Guarantor shall be automatically released (other than the Parent) from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not the Parentowns no Unencumbered Property, nor any direct or indirect equity interest in any Subsidiary that owns an Unencumbered Property; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.110.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents.; and (v) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent in its sole discretion) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
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Guarantors. (a) Within 5 Business days following Notify the date on which any of Administrative Agent at the following conditions applies to time that any Subsidiary issues or Unconsolidated Affiliate that is not already incurs any Debt (other than Excluded Debt) held by a Guarantornon-affiliated party, the Parent and the Borrower shall promptly, and in any event within 30 days, thereafter, cause such Subsidiary to (i) become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty or Unconsolidated Affiliate such other document as the Administrative Agent shall deem appropriate for such purpose, and (ii) deliver to execute and deliver an Accession Agreement and the items that would have been delivered under subsections Administrative Agent documents of the types referred to in clauses (iv) through ii), (viiiiii) and (xiiiv) of Section 5.1.(a8.1(a) if and opinions of counsel to such Subsidiary or Unconsolidated Affiliate had been a Guarantor on (which shall cover the Agreement Date:
legality, validity, binding effect and enforceability of the documentation referred to in clause (i) such Person Guarantees), or otherwise becomes obligated subject to customary qualifications and assumptions), all in respect ofform, any Indebtedness of (1) content and scope reasonably satisfactory to the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset ValueAdministrative Agent.
(b) The Borrower may request in writing Lenders agree that the Administrative Agent release a Guarantor from the Guaranty, and upon receipt of such written request by the Administrative Agent, such any Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying that: upon (i) the merger, sale, disposition or transfer of such Guarantor or its assets in a transaction not prohibited by this Agreement so long as, in any such transaction in which the Guarantor remains a Subsidiary of the Borrower, the Guarantor is not no longer obligated in respect of any Debt (other than Excluded Debt) (it being acknowledged that in any transaction involving a merger, sale, disposition or transfer between a Guarantor and another Subsidiary, the Parent; successor shall become a Guarantor if required under Section 5.11(a)) or (ii) upon the written request of the Borrower certifying (A) that such Guarantor no longer holds or is not otherwise required obligated to be a party to the Guaranty under the immediately preceding subsection (a) pay any Debt (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement Excluded Debt) and (B) that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1has occurred and is continuing.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents.
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Guarantors. (a) Within 5 Business 30 days following of any Person becoming a Material Subsidiary (other than an Excluded Subsidiary or a Foreign Subsidiary) after the date on which any Agreement Date, the Borrower shall deliver to the Administrative Agent each of the following conditions applies in form and substance satisfactory to any Subsidiary or Unconsolidated Affiliate that is not already a Guarantor, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate to execute and deliver Administrative Agent: (i) an Accession Agreement executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iv) through (viii) and (xiiixiv) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Material Subsidiary on the Agreement Date; provided, however, promptly (and in any event within 30 days) upon any Excluded Subsidiary ceasing to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement Date:
(i) pursuant to this Section, such Person Guarantees, or otherwise becomes obligated in respect of, any Indebtedness Subsidiary shall comply with the provisions of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset Valuethis Section.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not meets, or will meet simultaneously with its release from the ParentGuaranty, all of the provisions of the definition of the term “Excluded Subsidiary” or has ceased to be, or simultaneously with its release from the Guaranty will cease to be, a Material Subsidiary; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) accurate on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents; and (v) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
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Guarantors. (a) Within 5 Business days following Subject to clauses (b), (c) and (d), the date on which any Borrower at all times shall cause all of the following conditions applies Wholly-Owned Subsidiaries that are guarantors of the Senior Notes (or any replacement or refinancing debt in respect thereof) to be Guarantors.
(b) Within thirty (30) days after any domestic Wholly-Owned Subsidiary or Unconsolidated Affiliate that is not already becomes a Guarantorguarantor of the Senior Notes, the Parent and the Borrower shall cause such domestic Wholly-Owned Subsidiary or Unconsolidated Affiliate to execute and deliver an Accession Agreement and a Joinder to the items that would have been delivered under subsections Administrative Agent.
(ivc) through (viii) and (xiii) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement Date:
If at any time (i) such Person Guaranteesa Guarantor ceases to be a guarantor of the Senior Notes (or any replacement or refinancing debt in respect thereof), (ii) a Guarantor is dissolved, sold, merged, amalgamated or otherwise becomes obligated disposed of in a manner permitted by this Agreement or (iii) the outstanding principal amount of the Senior Notes (or any replacement or refinancing debt in respect ofthereof) is equal to or less than $150,000,000, any Indebtedness of (1A) the Parent; such Guarantor (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeingclause (iii), or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (yall Guarantors) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset Value.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guaranty, and upon receipt of such written request by the Administrative Agent, such Guarantor shall be automatically released from the Guaranty its obligations hereunder, without the any need for any formal action by the execution Administrative Agent or delivery any Lender, and (B) the Borrower shall provide notice of any other document such event to the Administrative Agent. Upon the written request of the Borrower, the Administrative Agent shall execute any documents reasonably requested by any other Person so long as the Borrower provides a written certificate together with such written notice certifying that: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required in order to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with acknowledge the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur from its obligations as a result of such releaseGuarantor.
(d) Notwithstanding anything contained herein to the contrary, including without limitation, no Wholly-Owned Subsidiary that is directly or indirectly owned by a Default or Event of Default resulting from Subsidiary that is not a violation of any of the covenants contained in Section 9.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, U.S. Person shall be true and correct in all material respects (except in the case of required to be a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan DocumentsGuarantor.
Appears in 1 contract
Sources: Credit Agreement (Sysco Corp)
Guarantors. (a) Within 5 Business days following the date on which any of the following conditions applies to any Subsidiary or Unconsolidated Affiliate that is not already a Guarantor, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate to execute and deliver an Accession Agreement and the items that would have been delivered under subsections (iv) through (viii) and (xiii) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement Date:
(i) such Person Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, Parent or the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, Guaranteeing ,or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded SubsidiaryAffiliate); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset Value.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents; and (v) the Administrative Agent shall have received such written request at least ten (10) days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 1 contract
Guarantors. (a) Within 5 Business days following If, during any fiscal quarter, (i) any Person becomes a Material Subsidiary (other than an Excluded Subsidiary, a Foreign Subsidiary or any Domestic Subsidiary that has no material assets other than stock and securities of one or more Foreign Subsidiary), (ii) any Material Subsidiary ceases to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement pursuant to this Section or (iii) any Person provides a Guaranty of the Senior Notes, then, not later than the date on which any of the following conditions applies Compliance Certificate is required to any Subsidiary be delivered pursuant to Section 9.3. with respect to such fiscal quarter (or Unconsolidated Affiliate that if such fiscal quarter is not already a Guarantorthe fourth fiscal quarter, the Parent and fiscal year ending on the date of such fiscal quarter), the Borrower shall cause such Material Subsidiary or Unconsolidated Affiliate to execute deliver to the Administrative Agent each of the following in form and deliver substance reasonably satisfactory to the Administrative Agent: (y) an Accession Agreement executed by such Subsidiary and (z) the items that would have been delivered under subsections (iv) through (viii) and (xiiixv) of Section 5.1.(a6.1.(a) and under Section 6.1.(f) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor Material Subsidiary (other than an Excluded Subsidiary, a Foreign Subsidiary or any Domestic Subsidiary that has no material assets other than stock and securities of one or more Foreign Subsidiary) on the Agreement Date:
(i) such Person Guarantees. As provided in Section 4.1.(d), or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of a Property that is to become an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate Unencumbered Property and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person that is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including a Subsidiary that is not a Guarantor shall not be considered to be an Unencumbered Property until such RD Entity) does not exceed 10.0% of time as the Unencumbered Asset Value.Administrative Agent shall have received the items referred to in Section 4.1.(d).
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Guarantor shall be automatically released (other than the Parent) from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not the Parentowns no Unencumbered Property, nor any direct or indirect equity interest in any Subsidiary that owns an Unencumbered Property; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.110.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents.; and (v) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent in its sole discretion) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 1 contract
Guarantors. (a) Within 5 Business days following Together with each delivery of financial statements required by Section 6.01(a) and 6.01(b), the date on which any of Borrower shall notify the following conditions applies to Agent if any Subsidiary has become a Material Domestic Subsidiary after the Initial Funding Date. Within 30 days after such notification (or Unconsolidated Affiliate that is not already a Guarantorsuch longer period as determined by Agent in its sole discretion), the Parent and the Borrower shall cause such Material Domestic Subsidiary or Unconsolidated Affiliate to execute and deliver an Accession Agreement and the items that would have been delivered under subsections (iv) through (viii) and (xiii) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement Date:
(i) such Person Guaranteesbecome a Guarantor by executing and delivering to the Agent a joinder to the Guaranty, or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless at the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% request of the Unencumbered Asset ValueAgent, deliver to the Agent such organization documents, resolutions and favorable opinions of counsel, all in form, content and scope similar to those delivered on the Closing Date or otherwise reasonably satisfactory to the Agent.
(b) The Borrower may request in writing that the Administrative Agent release If a Guarantor from is a party to any transaction of merger, consolidation or other combination permitted by Section 7.04(b) or 7.04(c), the continuing or surviving Person of such transaction shall, within 30 days after the consummation of such transaction, (i) become a Guarantor by executing and delivering to the Agent a joinder to the Guaranty and (ii) at the request of the Agent, deliver to the Agent such organization documents, resolutions and favorable opinions of counsel, all in form, content and scope similar to those delivered on the Closing Date or otherwise reasonably satisfactory to the Agent.
(c) Notwithstanding the forgoing, concurrently with such time as any Person becomes a guarantor or other obligor under the 2005 Note Purchase Agreement or the 2012 Note Purchase Agreement, the Borrower shall cause such Person to (i) become a Guarantor by executing and delivering to the Agent a joinder to the Guaranty, and (ii) at the request of the Agent, deliver to the Agent such organization documents, resolutions and favorable opinions of counsel, all in form, content and scope similar to those delivered on the Closing Date or otherwise reasonably satisfactory to the Agent.
(d) So long as no Default exists, if a Guarantor ceases to be a Material Domestic Subsidiary, then upon receipt of such the written request by of the Administrative AgentBorrower, the Agent shall release such Guarantor shall be automatically released from its obligations under the Guaranty without pursuant to Section 9.09; provided that the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with Agent shall not release such written notice certifying that: (i) Guarantor unless such Guarantor is not at such time (or concurrently with such release by the Parent; (iiAgent will cease to be) such Guarantor is not otherwise required to be a party to the Guaranty guarantor or obligor under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit 2005 Note Purchase Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this 2012 Note Purchase Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Alexander & Baldwin Holdings, Inc.)
Guarantors. (a) Within 5 Business days following the date on which any of the following conditions applies to any Subsidiary or Unconsolidated Affiliate that is not already a Guarantor, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate to execute and deliver an Accession Agreement and the items that would have been delivered under subsections (iv) through (viii) and (xiii) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement Date:
(i) such Person Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset Value.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guaranty, and upon receipt of such written request by the Administrative Agent, such Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying that: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents.
(r) The Credit Agreement is further amended by restating Section 9.1.
Appears in 1 contract
Guarantors. (a) Within 5 Business days following the date on which any of the following conditions applies to any The Company will cause each Subsidiary or Unconsolidated Affiliate that is not already or becomes a borrower or guarantor under or in respect of any Principal Credit Facility to become a Guarantor, prior to or concurrently with so becoming a borrower or a guarantor as aforesaid, by causing such Person (a “Guarantor”), at the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate Company’s expense, to execute and and/or deliver an Accession Agreement and to each holder of Notes, to the items that would have been delivered under subsections (iv) through (viii) and (xiii) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement Dateextent not prohibited by applicable law:
(i) (A) a Guaranty Agreement in substantially the form of Exhibit 9.7 hereto (or a Joinder Agreement to such Person GuaranteesGuaranty Agreement in substantially the form of Exhibit A thereto) pursuant to which such Subsidiary shall agree, inter alia, to guarantee the Obligations, or (B) a guarantee agreement otherwise becomes obligated in respect of, any Indebtedness of (1) form and substance reasonably satisfactory to the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); orRequired Holders;
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% copies of the Unencumbered Asset ValueOrganizational Documents of such Guarantor, resolutions of the board of directors (or other similar governing body) of such Guarantor authorizing its execution and delivery of the Subsidiary Guaranty by such Guarantor and the transactions contemplated thereby, and specimen signatures of authorized officers of such Guarantor (in each case, certified as correct and complete copies by the secretary or an assistant secretary (or an equivalent officer) of such Guarantor); and
(iii) an opinion of counsel to such Guarantor with respect to the Subsidiary Guaranty executed by such Guarantor, which opinion may be subject to customary qualifications and limitations, to the effect that: (A) the applicable Subsidiary Guaranty has been duly executed and authorized, (B) such Subsidiary Guaranty constitutes a valid, binding and enforceable obligation of such Guarantor, except insofar as enforcement thereof may be limited by bankruptcy, insolvency or similar laws (including, without limitation, all laws relating to fraudulent transfers) and except insofar as enforcement thereof is subject to general principles of equity and (C) except as could not reasonably be expected to result in a Material Adverse Effect, the execution, delivery and performance by the Guarantor of the Subsidiary Guaranty will not (1) contravene, result in any breach of, or constitute a default under any corporate charter or by-laws or similar organizational documents of such Guarantor, (2) conflict with or result in a breach of the express terms or conditions of material Indebtedness of the Company or such Guarantor, or (3) violate any provision of any Federal or state (which may be limited to the state(s) in which such counsel is admitted to practice) statute or other rule or regulation.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guaranty, and upon receipt of such written request by the Administrative Agent, such Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying that: Upon (i) delivery to the Company of a consent executed by the Required Holders with respect to a Guarantor (but subject to the provisions of Section 17.2(c) hereof), (ii) any sale, exchange or transfer (by merger or otherwise) of the Capital Stock of a Guarantor, after which such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required to be no longer a party to the Guaranty under the immediately preceding subsection (a) (other than Subsidiary or a Guarantor in respect of the Existing Credit Agreement Permitted Joint Venture, or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default the sale or Event disposition of Default all the assets of such Guarantor, which sale, exchange, transfer or disposition is made in compliance with the applicable provisions of Section 10.2 (but only if such Guarantor will not be a borrower or guarantor of obligations outstanding under the Credit Agreement after giving effect to such transaction), such Person shall then automatically be in existence or would occur released as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of Guarantor under the covenants contained in Section 9.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents Subsidiary Guaranty to which any of them it is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of party with effect from the date of such release with the same force and effect event under clause (i), (ii) or (iii), as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documentsapplicable.”
Appears in 1 contract
Guarantors. (a) Within 5 Business days Subject to the immediately following the date on which any of the following conditions applies to any subsection (c), if a Subsidiary or Unconsolidated Affiliate that is not already a GuarantorGuarantor Guarantees, or otherwise becomes obligated in respect of, any Debt of the Parent Borrower or any other Subsidiary of the Borrower, then as soon as practicable, and in any event within 30 days of such Subsidiary gives such Guarantee or become obligated in respect of such Debt, the Borrower shall cause such Subsidiary or Unconsolidated Affiliate deliver to execute the Administrative Agent each of the following in form and deliver substance satisfactory to the Administrative Agent: (i) an Accession Agreement executed by such Subsidiary (or if the Guaranty is not then in effect, the Guaranty executed by such Subsidiary) and (ii) the items that would have been delivered under subsections (iv) through (viii) and (xiii) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been required to become a Guarantor on the Agreement Date:
(i) such Person Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset Value.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Guarantor shall be automatically released (other than the Operating Partnership) from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not, or simultaneously with its release from the Guaranty will not the Parent; (ii) such Guarantor is not otherwise be, required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iiiii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (iviii) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted not prohibited under the Loan Documents; and (iv) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent in its sole discretion) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
(c) Notwithstanding the immediately preceding subsection (a), neither the DownREIT nor any of its Subsidiaries shall be required to become a Guarantor so long as none of the Borrower, any Subsidiary (other than an Excluded Subsidiary, the DownREIT or any Subsidiary of the DownREIT) or any other Loan Party has Guaranteed any of the Debt of the DownREIT or any of its Subsidiaries or has any direct obligation to maintain or preserve any such Person’s financial condition or to cause any such Person to achieve any specified levels of operating results (excluding guaranties of customary exceptions for fraud, misapplication of funds, environmental indemnities, voluntary bankruptcy, collusive involuntary bankruptcy and other similar exceptions to nonrecourse liability).
Appears in 1 contract
Guarantors. (a) Within 5 Business days following the date on which any No later than June 30 and December 31 of the following conditions applies to any Subsidiary or Unconsolidated Affiliate that is not already a Guarantoreach year, the Parent and the Borrower shall cause such Subsidiary deliver to the Administrative Agent each of the following, in form and substance satisfactory to the Administrative Agent, with respect to each Person (other than an Excluded Subsidiary) that became a Subsidiary, or Unconsolidated Affiliate ceased to execute and deliver be an Excluded Subsidiary, during the six-month period ending on the applicable date (or in the case of December 31, 2013, during the period from the Agreement Date to December 31, 2013): (i) an Accession Agreement and executed by such Subsidiary, (ii) the items that would have been delivered under subsections (iv) through (viii) and (xiiixiv) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor Loan Party on the Agreement Date:
Date and (iiii) such Person Guarantees, or otherwise becomes obligated in respect of, versions of any Indebtedness of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the ParentSchedules required to be delivered under the immediately following subsection (c). The Borrower may, at its option, cause any Subsidiary that is not already a Guarantor to become a Guarantor by executing and delivering to the Borrower or any other Person (except (x) in Administrative Agent the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in items required to be delivered under the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset Valueimmediately preceding sentence.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not the ParentApple REIT; (ii) such Guarantor does not own a Hotel or any other non-hotel real property asset or any interest in oil and gas rights, nor any direct or indirect equity interest in any Subsidiary that owns a Hotel or any other non-hotel real property asset or any interest in oil and gas rights; (iii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iiiiv) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (ivv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents; (vi) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release and (vii) the Borrower has delivered to the Administrative Agent versions of any of the Schedules required to be delivered under the immediately following subsection (c). Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
(c) In connection with the addition or release of Guarantors under this Section, the Borrower shall deliver to the Administrative Agent versions of Schedules 6.1.(d), 6.1.(j) and 6.1.
Appears in 1 contract
Guarantors. (a) Within 5 Business days following If, during any fiscal quarter, (i) any Person becomes a Material Subsidiary (other than an Excluded Subsidiary, a Foreign Subsidiary or any Domestic Subsidiary that has no material assets other than stock and securities of one or more Foreign Subsidiary), (ii) any Material Subsidiary ceases to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement pursuant to this Section or (iii) any Person provides a Guaranty of the Senior Notes, then, not later than the date on which any of the following conditions applies Compliance Certificate is required to any Subsidiary be delivered pursuant to Section 9.3. with respect to such fiscal quarter (or Unconsolidated Affiliate that if such fiscal quarter is not already a Guarantorthe fourth fiscal quarter, the Parent and fiscal year ending on the date of such fiscal quarter), the Borrower shall cause such Material Subsidiary or Unconsolidated Affiliate to execute deliver to the Administrative Agent each of the following in form and deliver substance reasonably satisfactory to the Administrative Agent: (y) an Accession Agreement executed by such Subsidiary and (z) the items that would have been delivered under subsections (iv) through (viii) and (xiiixvii) of Section 5.1.(a6.1(a) and under Section 6.1(g) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor Material Subsidiary (other than an Excluded Subsidiary, a Foreign Subsidiary or any Domestic Subsidiary that has no material assets other than stock and securities of one or more Foreign Subsidiary) on the Agreement Date:
(i) such Person Guarantees. As provided in Section 4.1(d), or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of a Property that is to become an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate Unencumbered Property and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person that is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including a Subsidiary that is not a Guarantor shall not be considered to be an Unencumbered Property until such RD Entity) does not exceed 10.0% of time as the Unencumbered Asset ValueAdministrative Agent shall have received the items referred to in Section 4.1(d).
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Guarantor shall be automatically released (other than the Parent) from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not the Parentowns no Unencumbered Property, nor any direct or indirect equity interest in any Subsidiary that owns an Unencumbered Property; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.10.1; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (v) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent in its sole discretion) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 1 contract
Guarantors. (a) Within 5 10 Business days Days following the date on which any of the following conditions first applies to any Subsidiary or Unconsolidated Affiliate that is not already a Guarantor, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate deliver to execute the Administrative Agent each of the following in form and deliver substance satisfactory to the Administrative Agent: (i) an Accession Agreement (or if no Guaranty is then in effect, the Guaranty), and (ii) the items that would have been delivered under subsections (iviii) through (viiivii) and (xiiixiv) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor Loan Party on the Agreement Date:
(iA) such Person Subsidiary Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) Borrower or any other Subsidiary of the Parent, the Borrower or any (other Person (except (x) in the case of than an Unconsolidated Affiliate Guaranteeing, Excluded Subsidiary guaranteeing or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(B) (i) such Subsidiary owns an asset the value of which is included in the determination of Unencumbered Asset Value and (ii) such Person Subsidiary, or any other Subsidiary that directly or indirectly owns any Equity Interest in such Subsidiary, has incurred, acquired or suffered to exist any Recourse Indebtedness (other than Recourse Indebtedness which, together with all other such Indebtedness of Subsidiaries owning Unencumbered Assets or other assets the value of which is an RD Entity, unless included in the determination of Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) and that are not Guarantors, does not exceed 10.0% of the Unencumbered Asset Value$1,000,000 at any time outstanding).
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iiiii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (iviii) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents; and (iv) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 1 contract
Sources: Credit Agreement (Government Properties Income Trust)
Guarantors. In the event that no later than the date that any Compliance Certificate is required to be delivered pursuant to Section 5.2, the Borrower determines that any of its then existing Subsidiaries is a Material Domestic Subsidiary and has not guaranteed the Obligations, the Borrower shall promptly, but in any event within thirty (30) days thereafter, notify the Administrative Agent in writing thereof. The Borrower shall (a) Within 5 Business promptly after request by the Administrative Agent (but in any event within thirty (30) days following after such request) made from time to time as to any existing Material Domestic Subsidiary, and (b) in any event within thirty (30) days of creating a new Material Domestic Subsidiary or acquiring a new Material Domestic Subsidiary, deliver to the date on which any Administrative Agent each of the following conditions applies to any Subsidiary or Unconsolidated Affiliate that is not already a Guarantor, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate to execute and deliver an Accession Agreement and the items that would have been delivered under subsections (iv) through (viii) and (xiii) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement Datefollowing:
(ia) a joinder and supplement to the Subsidiary Guaranty executed by such Person Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset Value.;
(b) The Borrower may request to the extent not already provided to the Administrative Agent, a secretary’s certificate from such Subsidiary certifying as to (i) the incumbency of the officers of such Subsidiary, (ii) authorizing resolutions with respect to the transactions contemplated by the Credit Documents to which such Subsidiary is a party, (iii) the organizational documents of such Subsidiary, (iv) governmental approvals, if any, required to be obtained by such Subsidiary with respect to the Credit Documents to which such Subsidiary is a party and (v) a certificate of good standing in writing such Subsidiary’s state of organization dated as of a recent date;
(c) to the extent not already provided to the Administrative Agent, all documentation and other information that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act; and
(d) to the extent not already provided to the Administrative Agent release a Guarantor from the Guaranty, and upon receipt of such written request only if requested by the Administrative Agent, an opinion of counsel in form and substance reasonably acceptable to the Administrative Agent related to such Material Domestic Subsidiary and substantially similar in scope to the legal opinions delivered at the Effective Date with respect to the other Guarantors in existence on the Effective Date. The guarantees made under this Section 5.6 shall terminate when (i) all the Obligations have been performed or paid in full and (ii) the Lenders have no further commitments under the Credit Agreement and the Letter of Credit Exposure has been reduced to zero. In the event (x) a Guarantor shall be automatically released from is no longer a Material Domestic Subsidiary or (y) a dissolution, sale or other disposition (including by way of merger or consolidation) of all or substantially all of the Guaranty without assets or all of the need for the execution or delivery Equity Interests of any other document Guarantor occurs and such sale or disposition is permitted by any other Person this Agreement (or permitted pursuant to a waiver, amendment, modification of or consent to a transaction otherwise prohibited by this Agreement), then, so long as the Borrower provides a written certificate together with such written notice certifying that: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be has occurred and is continuing, the Administrative Agent shall, upon written request by the Borrower, and at no cost to the Administrative Agent that is not reimbursed pursuant hereto, release such Guarantor from its liabilities and obligations under the Subsidiary Guaranty pursuant to such documentation as the Borrower may reasonably require. Except as provided in existence or would occur as a result the foregoing provisions of such release, including without limitationthis Section 5.6, a Default or Event release of Default resulting a Material Domestic Subsidiary from a violation of any its liabilities under the Subsidiary Guaranty shall require approval by all of the covenants contained Lenders (notwithstanding anything to the contrary set forth in Section 9.19.3 hereof).; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents.
Appears in 1 contract
Guarantors. Section 8.14 of the Credit Agreement is hereby amended and restated in its entirety as follows:
(a) Within 5 Business days following Subject to Section 8.14(c), within one hundred twenty (120) days, unless extended by the date on which Administrative Agent in its sole discretion, of (1) any Person becoming a Material Subsidiary (other than an Excluded Subsidiary) after the Effective Date, (2) any Studio Service Subsidiary being designated as an Unencumbered Studio Service Subsidiary (other than an Excluded Subsidiary) by the Borrower after the Second Amendment Effective Date pursuant to Section 4.2(b) or (3) the addition of a Property to the Unencumbered Pool that is owned by a Subsidiary not already a Guarantor (or Borrower), the Borrower shall deliver, or cause to be delivered, to the Administrative Agent each of the following conditions applies in form and substance reasonably satisfactory to any Subsidiary or Unconsolidated Affiliate that is not already a Guarantor, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate to execute and deliver Administrative Agent: (A) an Accession Agreement executed by such Subsidiary and (B) the items that would have been delivered under subsections (iviv)(A), (v) through (viii) ), and (xiiixiv) through (xvi), of Section 5.1.(a6.1(a) if such Subsidiary or Unconsolidated Affiliate had been a Material Subsidiary or an Unencumbered Studio Service Subsidiary, as applicable, on the Effective Date; provided, however, promptly (and in any event within one hundred twenty (120) days, unless extended by the Administrative Agent in its sole discretion) upon any Excluded Subsidiary ceasing to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement Date:
(i) pursuant to this Section, as the case may be, such Person GuaranteesSubsidiary shall comply with the provisions of this Section 8.14. For the purpose of clarity, each Unencumbered Pool Property must be owned by a Guarantor or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) , except during any other period in which the owner of any Unencumbered Pool Property is not required to provide a Guaranty pursuant to Section 8.14(c), in which case such Unencumbered Pool Property need only be owned by a Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset ValueBorrower.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) subject to Section 8.14(c), such Guarantor does not own (or will not own as of such release) any Unencumbered Pool Property, nor any direct or indirect equity interest in any Subsidiary that owns an Unencumbered Pool Property and such Guarantor is not the Parentthen designated as an Unencumbered Studio Service Subsidiary; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect or the last two sentences of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreementfollowing subsection (c); (iii) no Default or Event of Default shall then be in existence exists or would occur as a result of such release, including including, without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.10.1; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in to the case of a representation or warranty extent otherwise qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in to the case of a representation or warranty extent otherwise qualified by materiality, in which case such representation or warranty shall have been be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan DocumentsDocuments or waived or consented to by the applicable Lenders in writing in accordance with the provisions of Section 13.7; and (v) the Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
(c) Notwithstanding anything to the contrary contained in this Section 8.14 above, for so long as ▇▇▇▇▇▇ REIT maintains an Investment Grade Rating, no Material Subsidiary, Unencumbered Studio Service Subsidiary or owner of any Unencumbered Pool Property (or any other Subsidiary) shall be required to become a Guarantor and any Material Subsidiary, Unencumbered Studio Service Subsidiary or owner of any Unencumbered Pool Property (or any other Subsidiary) that has provided a Guaranty that is eligible to be released from such Guaranty pursuant to clauses (iii), (iv) and (v) of the preceding subsection (b) may be released from the Guaranty (which, for avoidance of doubt, shall in no event include ▇▇▇▇▇▇ REIT), unless such Person, or any Subsidiary that directly or indirectly owns any Equity Interest in such Person, provides a Guaranty of Indebtedness to a Person other than to the Administrative Agent, for the benefit of the Guarantied Parties (as defined in the Guaranty). In the event ▇▇▇▇▇▇ REIT fails to maintain an Investment Grade Rating, then each Material Subsidiary (other than an Excluded Subsidiary), each Unencumbered Studio Service Subsidiary (other than an Excluded Subsidiary) and each owner of any Unencumbered Pool Property that is not then a Guarantor that is a party to the Guaranty hereunder shall comply with all the terms and conditions of Section 8.14(a) above within thirty (30) days of such failure, unless extended by the Administrative Agent in its sole discretion. In the event a Material Subsidiary (other than an Excluded Subsidiary), an Unencumbered Studio Service Subsidiary (other than an Excluded Subsidiary) or an owner of any Unencumbered Pool Property or any Subsidiary that directly or indirectly owns any Equity Interest in such owner, that is not then a Guarantor that is party to the Guaranty hereunder provides a Guaranty of Indebtedness to a Person other than to the Administrative Agent, for the benefit of the Guarantied Parties (as defined in the Guaranty), then such Material Subsidiary, Unencumbered Studio Service Subsidiary, owner of any Unencumbered Pool Property and/or such Subsidiary that directly or indirectly owns any Equity Interest in such owner, as applicable, shall comply with all the terms and conditions of Section 8.14(a) above within thirty (30) days of executing such third party Guaranty, unless extended by the Administrative Agent in its sole discretion.
Appears in 1 contract
Guarantors. (a) Within 5 Business days following Subject to Section 8.14.(b), if, during any fiscal quarter, (i) any Person becomes a Material Subsidiary (other than an Excluded Subsidiary, a Foreign Subsidiary or any Domestic Subsidiary that has no material assets other than stock and securities of one or more Foreign Subsidiary), (ii) any Material Subsidiary ceases to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement pursuant to this Section or (iii) any Person provides a Guaranty of the Senior Notes, then, not later than the date on which any of the following conditions applies Compliance Certificate is required to any Subsidiary be delivered pursuant to Section 9.3. with respect to such fiscal quarter (or Unconsolidated Affiliate that if such fiscal quarter is not already a Guarantorthe fourth fiscal quarter, the Parent and fiscal year ending on the date of such fiscal quarter), the Borrower shall cause such Material Subsidiary or Unconsolidated Affiliate to execute deliver to the Administrative Agent each of the following in form and deliver substance reasonably satisfactory to the Administrative Agent: (y) an Accession Agreement executed by such Subsidiary and (z) the items that would have been delivered under subsections (iv) through (viii) and (xiiixv) of Section 5.1.(a6.1.(a) and under Section 6.1.(f) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor Material Subsidiary (other than an Excluded Subsidiary, a Foreign Subsidiary or any Domestic Subsidiary that has no material assets other than stock and securities of one or more Foreign Subsidiary) on the Agreement Date:
(i) such Person Guarantees. As provided in Section 4.1.(d), or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of a Property that is to become an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate Unencumbered Property and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person that is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including a Subsidiary that is not a Guarantor shall not be considered to be an Unencumbered Property until such RD Entity) does not exceed 10.0% of time as the Unencumbered Asset Value.Administrative Agent shall have received the items referred to in Section 4.1.(d).
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Guarantor shall be automatically released (other than the Parent) from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not the Parentowns no Unencumbered Property, nor any direct or indirect equity interest in any Subsidiary that owns an Unencumbered Property; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.110.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents.; and (v) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent in its sole discretion) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 1 contract
Sources: Term Loan Agreement (Sunstone Hotel Investors, Inc.)
Guarantors. (a) Within 5 Business days following Subject to Section 8.14(c), within one hundred twenty (120) days, unless extended by Administrative Agent in its sole discretion, of any Person becoming a Material Subsidiary (other than an Excluded Subsidiary) after the date on which any Effective Date or in connection with the addition of a Property to the Unencumbered Pool that is owned by a Subsidiary not already a Guarantor (or Borrower), the Borrower shall deliver to the Administrative Agent each of the following conditions applies in form and substance reasonably satisfactory to any Subsidiary or Unconsolidated Affiliate that is not already a Guarantor, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate to execute and deliver Administrative Agent: (A) an Accession Agreement executed by such Subsidiary and (B) the items that would have been delivered under subsections (iviv)(A), (v) through (viii) ), and (xiiixiv) through (xvi), of Section 5.1.(a6.1(a) if such Subsidiary or Unconsolidated Affiliate had been a Material Subsidiary on the Effective Date; provided, however, promptly (and in any event within one hundred twenty (120) days, unless extended by Administrative Agent in its sole discretion) upon any Excluded Subsidiary ceasing to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement Date:
(i) pursuant to this Section, as the case may be, such Person GuaranteesSubsidiary shall comply with the provisions of this Section. For the purpose of clarity, each Unencumbered Pool Property must be owned by a Guarantor or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) , except during any other period in which the owner of any Unencumbered Pool Property is not required to provide a Guaranty pursuant to Section 8.14(c), in which case such Unencumbered Pool Property need only be owned by a Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset ValueBorrower.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) subject to Section 8.14(c), such Guarantor is does not the Parentown (or will not own as of such release) any Unencumbered Pool Property, nor any direct or indirect equity interest in any Subsidiary that owns an Unencumbered Pool Property; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect or the last two sentences of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreementfollowing subsection (c); (iii) no Default or Event of Default shall then be in existence exists or would occur as a result of such release, including including, without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.10.1; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in to the case of a representation or warranty extent otherwise qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in to the case of a representation or warranty extent otherwise qualified by materiality, in which case such representation or warranty shall have been be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan DocumentsDocuments or waived or consented to by the applicable Lenders in accordance with the provisions of Section 13.7; and (v) the Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
(c) Notwithstanding anything to the contrary contained in this Section 8.14 above, for so long as ▇▇▇▇▇▇ REIT maintains an Investment Grade Rating, no Material Subsidiary or owner of any Unencumbered Pool Property (or any other Subsidiary) shall be required to become a Guarantor and any Material Subsidiary or owner of any Unencumbered Pool Property (or any other Subsidiary) that has provided a Guaranty that is eligible to be released from such Guaranty pursuant to clauses (iii), (iv) and (v) of the preceding subsection (b) may be released from the Guaranty (which, for avoidance of doubt, shall in no event include ▇▇▇▇▇▇ REIT), unless such Person, or any Subsidiary that directly or indirectly owns any Equity Interest in such Person, provides a Guaranty of Indebtedness to a Person other than to Administrative Agent, for the benefit of the Guarantied Parties (as defined in the Guaranty). In the event Borrower fails to maintain an Investment Grade Rating, then each Material Subsidiary (other than an Excluded Subsidiary) and each owner of any Unencumbered Pool Property that is not then a Guarantor that is a party to the Guaranty hereunder shall comply with all the terms and conditions of Section 8.14(a) above within thirty (30) days of such failure, unless extended by Administrative Agent in its sole discretion. In the event a Material Subsidiary (other than an Excluded Subsidiary) or an owner of any Unencumbered Pool Property or any Subsidiary that directly or indirectly owns any Equity Interest in such owner, that is not then a Guarantor that is party to the Guaranty hereunder provides a Guaranty of Indebtedness to a Person other than to Administrative Agent, for the benefit of the Guarantied Parties (as defined in the Guaranty), then such Material Subsidiary, owner of any Unencumbered Pool Property and/or such Subsidiary that directly or indirectly owns any Equity Interest in such owner, as applicable, shall comply with all the terms and conditions of Section 8.14(a) above within thirty (30) days of executing such third party Guaranty, unless extended by Administrative Agent in its sole discretion.
Appears in 1 contract
Guarantors. (a) Within 5 Business days following the date on which any The Borrower will cause each Subsidiary of the following conditions applies Company that guarantees or otherwise becomes liable at any time, whether as a borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under any Material Credit Facility or under any Note Purchase Agreement, to any Subsidiary or Unconsolidated Affiliate that is not already a Guarantor, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate to execute and deliver an Accession Agreement and the items that would have been delivered under subsections (iv) through (viii) and (xiii) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement Dateconcurrently therewith:
(i) enter into and deliver to the Bank Guaranty Documents (or a joinder to the Guaranty Documents) so that such Person Guarantees, or otherwise Subsidiary becomes obligated in respect of, any Indebtedness of (1) a Guarantor under the ParentGuaranty Documents; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); orand
(ii) such Person is an RD Entity, unless deliver the Unencumbered Asset Value attributable following to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset Value.Bank:
(bA) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guaranty, and upon receipt certificate signed by an authorized responsible officer of such written request by Subsidiary containing representations and warranties on behalf of such Subsidiary to the Administrative Agentsame effect, mutatis mutandis, as those contained in Sections 3.1, 3.4 and 3.5 of this Agreement (but with respect to such Guarantor shall be automatically released from Subsidiary and the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying that: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor Documents in respect of such Subsidiary rather than the Existing Credit Agreement Borrower or 2017 Term another existing Loan Agreement that will Party);
(B) all documents as may be released reasonably requested by the Bank to evidence the due organization, continuing existence and discharged thereunder substantially simultaneously with the release good standing of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result Subsidiary and the due authorization by all requisite action on the part of such release, including without limitation, a Default or Event of Default resulting from a violation of any Subsidiary of the covenants contained in Section 9.1.execution and delivery of such Guaranty Documents and the performance by such Subsidiary of its obligations thereunder;
(C) an opinion of counsel reasonably satisfactory to the Bank covering such matters relating to such Subsidiary and such Guaranty Documents as the Bank may reasonably request; and and
(ivD) if such Subsidiary is organized under the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case laws of a representation or warranty qualified jurisdiction outside the United States, evidence of the acceptance by materialitya process agent that is reasonably satisfactory to the Bank of the appointment and designation provided for by such Guaranty Documents, in which case as such representation or warranty shall be true Subsidiary’s agent to receive, for it and correct in all respects) on and as its behalf, service of process, for the period from the date of such release with Guaranty Documents to one year after the same force Expiration Date (and effect as if made on and as the payment in full of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (all fees in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documentsrespect thereof).
Appears in 1 contract
Sources: Loan Agreement (Evercore Inc.)
Guarantors. (a) Within 5 Business days following the date on which any of the following conditions applies to any Subsidiary or Unconsolidated Affiliate that is not already a Guarantor, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate to execute and deliver an Accession Agreement and the items that would have been delivered under subsections (iviii) through (viii) and (xiiivii) of Section 5.1.(a) and such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement Date:
(i) such Person Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset Value.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guaranty, and upon receipt of such written request by the Administrative Agent, such Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying that: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Existing Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents.
Appears in 1 contract
Guarantors. (a) (x) Within 5 fifteen (15) Business days following the date on which Days of any Person becoming a Subsidiary of the following conditions applies to Parent owning a direct or indirect interest in the Borrower after the Agreement Date, or (y) substantially concurrently with any Subsidiary or Unconsolidated Affiliate that is not already a Guarantorof the Parent (other than the Borrower) entering into any Guarantee of Indebtedness of any Loan Party (other than Indebtedness described on Schedule 8.14 on the Effective Date), the Parent and Parent, the Borrower shall cause and such Subsidiary or Unconsolidated Affiliate shall deliver to execute and deliver the Administrative Agent each of the following: (i) an Accession Agreement executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iv) through (viii) and (xiii) of Section 5.1.(a6.2(a) and under Section 6.1(d) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement Effective Date:
(i) , in form and substance substantially consistent with such Person Guarantees, items delivered on the Effective Date or otherwise becomes obligated in respect of, any Indebtedness of (1) reasonably satisfactory to the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset ValueAdministrative Agent.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Subsidiary Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not the Parent; (ii) such Subsidiary Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (after giving effect to clause (ii) hereof); (ii) such Subsidiary Guarantor no longer Guarantees (or which Guarantee is being substantially concurrently released) any other than a Guarantor in respect Indebtedness of the Existing Credit Agreement or 2017 Term any Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement)Party; (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.10.1; and (iv) the representations and warranties made Administrative Agent shall have received such written request at least five (5) Business Days (or deemed made such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Parent and each other Loan Party the Borrower that the conditions set forth in the Loan Documents to which any of them is a party, shall preceding sentence are or will be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and satisfied as of the requested date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documentsrelease.
Appears in 1 contract
Sources: Credit Agreement (VEREIT Operating Partnership, L.P.)
Guarantors. (a) Within 5 Business days following the date on which If during any fiscal quarter, by way of Division or otherwise, (i) a Subsidiary that should be a Parent Guarantor is organized or acquired or (ii) subject to clause (y) of the following conditions applies proviso to any the definition of “Guarantor”, a Subsidiary or Unconsolidated Affiliate that is not already a GuarantorGuarantor and is not an Excluded Subsidiary becomes a borrower or a guarantor of, or otherwise becomes obligated to make any payment in respect of, any Unsecured Indebtedness, then not later than the Parent and date of the delivery of the financial statements required to be delivered pursuant to Sections 6.1(a) or (b), as applicable, with respect to such fiscal quarter (or, to the extent that as of such initial required delivery date, any such Subsidiary or its assets are the subject of Joint Venture Negotiations, not later than the date of the delivery of the financial statements required to be delivered pursuant to Sections 6.1(a) or (b), as applicable, with respect to the immediately succeeding fiscal quarter) (or, in each case, such later date as the Administrative Agent may agree in its sole discretion), the Borrower shall provide the Administrative Agent with written notice thereof and shall cause each such Subsidiary or Unconsolidated Affiliate to execute deliver to the Administrative Agent a joinder to the Guaranty (in the form contemplated thereby) pursuant to which such Subsidiary agrees to be bound by the terms and deliver provisions thereof, such Guaranty joinders to be accompanied by an Accession Agreement updated Schedule 5.7 hereto designating such Subsidiary as such and the items appropriate corporate, limited liability company, limited partnership or equivalent resolutions and other associated documentation and legal opinions that would have been delivered under subsections (iv) through (viiiSections 4.1(c) and (xiii) of Section 5.1.(ae) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement Effective Date:
(i) , in each case in form and substance reasonably satisfactory to the Administrative Agent and its counsel, and such Person Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of (1) other documentation as the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset ValueAdministrative Agent may reasonably request.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the GuarantyGuarantor, and upon receipt of such written request by the Administrative Agentother than any Parent Guarantor, such Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor either (1) owns no Eligible Property, nor any direct or indirect equity interest in any Subsidiary that owns an Eligible Property, (2) has ceased to be a Subsidiary of the REIT pursuant to a transaction otherwise not prohibited pursuant to the Loan Documents or has become an Excluded Subsidiary, (3) has ceased to be a borrower or a guarantor of, or otherwise obligated to make any payment in respect of, any Unsecured Indebtedness or (4) is not required to be a Guarantor due to clause (y) of the Parentproviso to the definition of “Guarantor”; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.6.16; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (v) the Administrative Agent shall have received such written request (which such request shall include a certificate of an Authorized Signatory of the Borrower certifying the matters referred to in the immediately preceding clauses (i) through (iv)) at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request. Upon satisfaction of the conditions set forth above, the applicable Guarantor shall be automatically released on the requested release date without any other notice to or from the Administrative Agent or any Lender.
(c) Upon the release of any Person pursuant to this Section 6.17, the Administrative Agent shall (to the extent applicable) deliver to the Loan Parties, upon the Loan Parties’ request and at the Loan Parties’ expense, such documentation as is reasonably requested by the Borrower (and reasonably satisfactory to the Administrative Agent) or is necessary to evidence the release of such Person from its obligations under the Loan Documents.
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Guarantors. (a) Within 5 Business days following If, during any fiscal quarter, (i) any Person becomes a Material Subsidiary (other than an Excluded Subsidiary, a Foreign Subsidiary or any Domestic Subsidiary that has no material assets other than stock and securities of one or more Foreign Subsidiary), (ii) any Material Subsidiary ceases to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement pursuant to this Section or (iii) any Person provides a Guaranty of the Senior Notes, then, not later than the date on which any of the following conditions applies Compliance Certificate is required to any Subsidiary be delivered pursuant to Section 9.3. with respect to such fiscal quarter (or Unconsolidated Affiliate that if such fiscal quarter is not already a Guarantorthe fourth fiscal quarter, the Parent and fiscal year ending on the date of such fiscal quarter), the Borrower shall cause such Material Subsidiary or Unconsolidated Affiliate to execute deliver to the Administrative Agent each of the following in form and deliver substance reasonably satisfactory to the Administrative Agent: (y) an Accession Agreement executed by such Subsidiary and (z) the items that would have been delivered under subsections (iv) through (viii) and (xiiixv) of Section 5.1.(a6.1.(a) and under Section 6.1.(f) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor Material Subsidiary (other than an Excluded Subsidiary, a Foreign Subsidiary or any Domestic Subsidiary that has no material assets other than stock and securities of one or more Foreign Subsidiary) on the Agreement Date:
(i) such Person Guarantees. As provided in Section 4.1.(d), or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of a Property that is to become an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate Unencumbered Property and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person that is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including a Subsidiary that is not a Guarantor shall not be considered to be an Unencumbered Property until such RD Entity) does not exceed 10.0% of time as the Unencumbered Asset Value.Administrative Agent shall have received the items referred to in Section 4.1.(d).
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Guarantor shall be automatically released (other than the Parent) from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not the Parentowns no Unencumbered Property, nor any direct or indirect equity interest in any Subsidiary that owns an Unencumbered Property; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.110.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents.; and (v) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent in its sole discretion) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 1 contract
Guarantors. (a) Within 5 Business days following If, during any fiscal quarter, (i) any Person becomes a Material Subsidiary (other than an Excluded Subsidiary, a Foreign Subsidiary or any Domestic Subsidiary that has no material assets other than stock and securities of one or more Foreign Subsidiary), (ii) any Material Subsidiary ceases to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement pursuant to this Section or (iii) any Person provides a Guaranty of the Senior Notes, then, not later than the date on which any of the following conditions applies Compliance Certificate is required to any Subsidiary be delivered pursuant to Section 9.3. with respect to such fiscal quarter (or Unconsolidated Affiliate that if such fiscal quarter is not already a Guarantorthe fourth fiscal quarter, the Parent and fiscal year ending on the date of such fiscal quarter), the Borrower shall cause such Material Subsidiary or Unconsolidated Affiliate to execute deliver to the Administrative Agent each of the following in form and deliver substance reasonably satisfactory to the Administrative Agent: (y) an Accession Agreement executed by such Subsidiary and (z) the items that would have been delivered under subsections (iv) through (viii) and (xiiixv) of Section 5.1.(a6.1.(a) and under Section 6.1.(f) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor Material Subsidiary (other than an Excluded Subsidiary, a Foreign Subsidiary or any Domestic Subsidiary that has no material assets other than stock and securities of one or more Foreign Subsidiary) on the Agreement Date:
(i) such Person Guarantees. As provided in Section 4.1.(d), or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of a Property that is to become an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate Unencumbered Property and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person that is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including a Subsidiary that is not a Guarantor shall not be considered to be an Unencumbered Property until such RD Entity) does not exceed 10.0% of time as the Unencumbered Asset Value.Administrative Agent shall have received the items referred to in Section 4.1.(d).
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Guarantor shall be automatically released (other than the Parent) from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not the Parentowns no Unencumbered Property, nor any direct or indirect equity interest in any Subsidiary that owns an Unencumbered Property; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.110.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents.; and (v) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent in its sole discretion) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 1 contract
Guarantors. (a) Within 5 Business days following If, during any fiscal quarter, (i) any Person becomes a Material Subsidiary (other than an Excluded Subsidiary, a Foreign Subsidiary or any Domestic Subsidiary that has no material assets other than stock and securities of one or more Foreign Subsidiary), (ii) any Material Subsidiary ceases to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement pursuant to this Section or (iii) any Person provides a Guaranty of the Senior Notes or the High Yield Notes (if any), then, not later than the date on which any of the following conditions applies Compliance Certificate is required to any Subsidiary be delivered pursuant to Section 9.3. with respect to such fiscal quarter (or Unconsolidated Affiliate that if such fiscal quarter is not already a Guarantorthe fourth fiscal quarter, the Parent and fiscal year ending on the date of such fiscal quarter), the Borrower shall cause such Material Subsidiary or Unconsolidated Affiliate to execute deliver to the Administrative Agent each of the following in form and deliver substance reasonably satisfactory to the Administrative Agent: (y) an Accession Agreement executed by such Subsidiary and (z) the items that would have been delivered under subsections (iv) through (viii) and (xiiixv) of Section 5.1.(a6.1.(a) and under Section 6.1.(f) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor Material Subsidiary (other than an Excluded Subsidiary, a Foreign Subsidiary or any Domestic Subsidiary that has no material assets other than stock and securities of one or more Foreign Subsidiary) on the Agreement Date:
(i) such Person Guarantees. As provided in Section 4.1.(d), or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of a Property that is to become an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate Unencumbered Property and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person that is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including a Subsidiary that is not a Guarantor shall not be considered to be an Unencumbered Property until such RD Entity) does not exceed 10.0% of time as the Unencumbered Asset ValueAdministrative Agent shall have received the items referred to in Section 4.1.(d).
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Guarantor shall be automatically released (other than the Parent) from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not the Parentowns no Unencumbered Property, nor any direct or indirect equity interest in any Subsidiary that owns an Unencumbered Property; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.110.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (v) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent in its sole discretion) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 1 contract
Guarantors. (a) Within 5 Business Except as set forth in Section 5.09(b), (i) if an Eligible Foreign Subsidiary is designated as a Foreign Subsidiary Borrower pursuant to Section 2.23, contemporaneously with the deliveries required to be furnished to the Administrative Agent pursuant to Section 4.05, (ii) if any Person becomes a Subsidiary of MKCapri Holdings (including, without limitation, any Division Successor) or any Subsidiary qualifies independently as, or is designated by the Company or the Administrative Agent as, a Guarantor pursuant to the definition of “Material Subsidiary”, as promptly as possible but in any event within sixty (60) days following (or, with respect to the date on which Target or any Subsidiary of the following conditions applies Target that becomes a Subsidiary of MKCapri Holdings pursuant to the Target Acquisition, ninety (90) days; or, in each case, such later date as may be agreed upon by the Administrative Agent) thereof and (iii) if any Subsidiary or Unconsolidated Affiliate that is not already a Loan Party guarantees the Senior Notes (“Senior Notes Subsidiary Guarantor”), (A) solely in the case of clause (ii) above, the Parent Company shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail as to whether such Subsidiary is a Material Subsidiary and (B) in each case, the Borrower Company shall cause each such Foreign Subsidiary Borrower, each such Subsidiary which qualifies as a Material Subsidiary or Unconsolidated Affiliate each such Subsidiary that is a Senior Notes Subsidiary Guarantor to execute and deliver an Accession Agreement and to the items that would have been delivered under subsections Administrative Agent (iv1) through (viiix) and a joinder to the Guaranty described in clause (xiiia) of Section 5.1.(athe definition of “Guaranty” (in the form contemplated thereby) pursuant to which such Foreign Subsidiary Borrower or Subsidiary, as applicable, agrees to be bound by the terms and provisions thereof or (y) if such Subsidiary or Unconsolidated Affiliate had been is a Guarantor on Foreign Subsidiary and local counsel advises the Agreement Date:
Administrative Agent that such Guaranty is not effective under the laws of such Foreign Subsidiary’s jurisdiction of organization to provide a guarantee of the Obligations by such Foreign Subsidiary with substantially the substance and scope as contemplated by the terms of such Guaranty, a Guaranty described in clause (ib) of the definition of “Guaranty” that is governed by the laws of such Person GuaranteesForeign Subsidiary’s jurisdiction of organization, or otherwise becomes obligated in respect ofform and substance reasonably satisfactory to the Administrative Agent), any Indebtedness of and (2) to the extent not appropriately included in the documentation described in the preceding clause (1) the Parent; or in documentation required by Sections 2.23 and 4.03 (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset Value.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guaranty, and upon receipt of such written request by the Administrative Agent, such Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying that: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified Material Subsidiary that is a Foreign Subsidiary Borrower), a joinder to this Agreement pursuant to which such Subsidiary agrees to be bound by materialitythe terms and provisions hereof, in which case any such representation case, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as reasonably requested by the Administrative Agent and in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(i) No Subsidiary that is a CFC or warranty a CFC Holding Company shall be true and correct in all respectsrequired to guarantee (or if already a Guarantor, shall be required to continue to guarantee) on and as (1) any Obligations of the date any Domestic Subsidiary or (2) any Obligations of such release with the same force and effect as if made on and as of such date except another Loan Party to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as respect of such earlier dateLoan Party’s guarantee of the Obligations of any Domestic Subsidiary and (ii) no Subsidiary shall be required to become (or if already a Guarantor, shall be required to continue as) a Guarantor to the extent (x) such Subsidiary is prohibited by applicable law, rule or regulation from guaranteeing the Obligations or which would require governmental or regulatory consent, approval, license or authorization to provide such guaranty (unless such consent, approval, license or authorization has been received), (y) such Subsidiary is a non-wholly owned Subsidiary and except for changes is prohibited by its organizational documents or applicable equity holder agreement from guaranteeing the Obligations or which would require the consent or approval of an equity holder (other than MKCapri Holdings or any of its wholly owned Subsidiaries) to provide such guaranty (unless such consent or approval has been received) or (z) the Administrative Agent determines that the cost or other consequence of such Subsidiary providing such a guarantee is excessive in factual circumstances expressly permitted under relation to the Loan Documentsvalue afforded thereby.
Appears in 1 contract
Guarantors. (a) Within 5 10 Business days Days following the date on which any either of the following conditions first applies to any Subsidiary or Unconsolidated Affiliate (other than a Foreign Subsidiary) that is not already a Guarantor, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate deliver to execute the Administrative Agent each of the following in form and deliver substance satisfactory to the Administrative Agent: (i) an Accession Agreement (or if the Guaranty is not then in effect, the Guaranty) and (ii) the items that would have been delivered under subsections (iviii) through (viii) vii), and (xiii) of Section 5.1.(a) and Section 5.1.(b) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor Loan Party on the Agreement Date:
(iA) such Person Subsidiary Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) Parent or any other Subsidiary of the Parent, the Borrower Parent (other than an Excluded Subsidiary or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, a Foreign Subsidiary Guaranteeing or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary or Foreign Subsidiary, as applicable); or
(B) (i) such Subsidiary (other than a Foreign Subsidiary) owns an Unencumbered Asset or other asset the value of which is included in the determination of Unencumbered Asset Value and (ii) such Person Subsidiary, or any other Subsidiary that directly or indirectly owns any Equity Interest in such Subsidiary, has incurred, acquired or suffered to exist any Indebtedness that is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset ValueNonrecourse Indebtedness.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required (or upon its release will not be required) to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor or Section 7.15. in respect the case of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement)Parent; (iiiii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (iviii) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents; and (iv) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 1 contract
Guarantors. (a) Within 5 Business fifteen (15) days following of any Person becoming a Material Subsidiary (other than an Excluded Subsidiary) after the date on which any Effective Date, the Borrower shall deliver to the Administrative Agent each of the following conditions applies items, each in form and substance satisfactory to any the Administrative Agent: (i) a Joinder Agreement executed by such Material Subsidiary or Unconsolidated Affiliate that is not already a Guarantor, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate to execute and deliver an Accession Agreement and (ii) the items that would have been delivered under subsections (ivSection 5.1(a)(iv) through (viii) and (xiii) of Section 5.1.(a5.1(a)(viii) if such Material Subsidiary or Unconsolidated Affiliate had been one on the Effective Date. Additionally, in the event that any Subsidiary of Borrower or CLP, whether presently existing or hereafter formed or acquired, which is not a Guarantor on at such time, shall after the Agreement Date:
(i) such Person Guarantees, date hereof become a guarantor under any existing or otherwise becomes obligated in respect of, any Indebtedness future Unsecured Debt of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) Loan Party, then Borrower shall cause such Subsidiary to execute and deliver the items described in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiarythis Section 7.12(a); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset Value.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Guarantor shall be automatically released (other than CLP) from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement)Section 7.12; (iiiii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in this Section 9.1.7.12; (iii) the Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release and (iv) Borrower shall deliver to Administrative Agent evidence reasonably satisfactory to Administrative Agent either that (A) if the representations and warranties made Guarantor is a Material Subsidiary, the Borrower has disposed of or deemed made simultaneously with such release will dispose of its entire interest in such Guarantor or (B) if Guarantor is the owner of an Unencumbered Asset, but not a Material Subsidiary, that all assets owned by such Guarantor have been removed from the calculation of Unencumbered Asset Value. Delivery by the Borrower and each other Loan Party to the Administrative Agent of any such request for a release shall constitute a representation by the Borrower that the matters set forth in the Loan Documents to which any preceding sentence (both as of them is a party, shall be true and correct in all material respects (except in the case date of a representation or warranty qualified by materiality, in which case the giving of such representation or warranty shall be true and correct in all respects) on request and as of the date of such release with the same force and effect as if made on and as effectiveness of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been request) are true and correct in with respect to such request. Notwithstanding the foregoing, the foregoing provisions shall not apply to CLP, which may only be released upon the written approval of Administrative Agent and all material respects (except in of the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan DocumentsLenders.
Appears in 1 contract
Sources: Term Loan Agreement (Colonial Realty Limited Partnership)
Guarantors. (a) Within 5 Business days following It is understood and agreed by Borrower that Guarantor is in no way whatsoever released from their Guaranty Agreements by this Agreement, as Lender has the date on which right, but not the obligation, at any time and from time to time, without prejudice to any claim against Guarantor, and without notice to Guarantor, to enter into this Agreement without waiving any of the following conditions applies to any Subsidiary or Unconsolidated Affiliate that is not already a Lender’s rights against Guarantor, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate to execute and deliver an Accession Agreement and the items that would have been delivered under subsections (iv) through (viii) and (xiii) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement Date:
(i) such Person Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset Value.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guaranty, and upon receipt of such written request by the Administrative Agent, such Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying that: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default to collect from Guarantor any and all deficiencies on the Indebtedness as determined by Lender in its sole discretion. Borrower also acknowledges and agrees that the Guaranty Agreements signed by the Guarantor contain guaranties of payment, under which Lender at its sole discretion may elect to pursue remedies for collection of debt or Event of Default resulting from a violation deficiencies of any obligations owed by Borrower or Guarantors, jointly or severally at any time upon default, and Lender may make determinations in its sole discretion whether to seek collection of any amount of the covenants contained in Section 9.1.; and (iv) the representations and warranties made Indebtedness from one or deemed made by the all obligors, whether Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and Guarantor. EXECUTED as of the date Effective Date. By: /s/ L▇▇▇▇ ▇. ▇▇▇▇▇▇ Printed Name: L▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Interim Chief Executive Officer By: /s/ B▇▇▇▇▇▇▇ De La G▇▇▇▇ STATE OF OKLAHOMA § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF OKFUSKEE § This Assignment of such release with Production Payment (the same force and effect as if made on and “Assignment”), dated as of such date except to August 1, 2018 the extent that such representations (“Effective Date”), is by and warranties expressly relate solely to an earlier date among N&B ENERGY, LLC, whose address is [________________] (in which case such representations “Assignor”); and warranties shall have been true CE Operating, LLC, whose address is 1▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (“CE Operating”) or CE Operating’s designee (collectively, “Assignee”). Assignor and correct in all material respects (except in Assignee are collectively the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents“Parties”.
Appears in 1 contract
Sources: Loan Agreement (Camber Energy, Inc.)
Guarantors. (a) Within 5 Business days following Days of any Person becoming a Material Subsidiary (other than an Excluded Subsidiary or a Foreign Subsidiary) after the date on which any Agreement Date, the Borrower shall deliver to the Administrative Agent each of the following conditions applies in form and substance reasonably satisfactory to any Subsidiary or Unconsolidated Affiliate that is not already a Guarantor, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate to execute and deliver Administrative Agent: (i) an Accession Agreement executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iv) through (viii) and (xiiixv) of Section 5.1.(a6.1.(a) and under Section 6.1.(e) if such Subsidiary or Unconsolidated Affiliate had been a Material Subsidiary on the Agreement Date; provided, however, promptly (and in any event within 5 Business Days) upon any Excluded Subsidiary that is a Material Subsidiary ceasing to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement Date:
(i) such Person Guaranteespursuant to this Section, or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in as the case may be, such Subsidiary shall comply with the provisions of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset Valuethis Section.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Guarantor shall be automatically released (other than the Parent) from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not the Parentowns no Unencumbered Property, nor any direct or indirect equity interest in any Subsidiary that owns an Unencumbered Property; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.110.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (v) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent in its sole discretion) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 1 contract
Guarantors. (a) (x) Within 5 fifteen (15) Business days following the date on which Days of any Person becoming a Subsidiary of the following conditions applies to Parent owning a direct or indirect interest in the Borrower after the Agreement Date, or (y) substantially concurrently with any Subsidiary or Unconsolidated Affiliate that is not already a Guarantorof the Parent (other than the Borrower) entering into any Guarantee of Indebtedness of any Loan Party (other than Indebtedness described on Schedule 8.14 on the Effective Date), the Parent and Parent, the Borrower shall cause and such Subsidiary or Unconsolidated Affiliate shall deliver to execute and deliver the Administrative Agent each of the following: (i) an Accession Agreement executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iv) through (viii) and (xiiixvi) of Section 5.1.(a6.1(a) and under Section 6.1(e) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement Date:
(i) , in form and substance substantially consistent with such Person Guarantees, items delivered on the Effective Date or otherwise becomes obligated in respect of, any Indebtedness of (1) reasonably satisfactory to the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset ValueAdministrative Agent.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Subsidiary Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not the Parent; (ii) such Subsidiary Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreementafter giving effect to clause (ii) hereof); (ii) such Subsidiary Guarantor no longer Guarantees (or which Guarantee is being substantially concurrently released) any other Indebtedness of any Loan Party (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.10.1; and (iv) the representations and warranties made Administrative Agent shall have received such written request at least five (5) Business Days (or deemed made such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Parent and each other Loan Party the Borrower that the conditions set forth in the Loan Documents to which any of them is a party, shall preceding sentence are or will be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and satisfied as of the requested date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documentsrelease.
Appears in 1 contract
Sources: Credit Agreement (American Realty Capital Properties, Inc.)
Guarantors. (a) Within 5 10 Business days Days following the date on which any of the following conditions first applies to any Subsidiary or Unconsolidated Affiliate that is not already a Guarantor, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate deliver to execute the Administrative Agent each of the following in form and deliver substance satisfactory to the Administrative Agent: (i) an Accession Agreement (or if no Guaranty is then in effect, the Guaranty), and (ii) the items that would have been delivered under subsections (ivii) through (viii) and (xiiivi) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor Loan Party on the Agreement Closing Date, together with such other documents and instruments relating thereto as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request:
(iA) such Person Subsidiary Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) Borrower or any other Subsidiary of the Parent, the Borrower or any (other Person (except (x) in the case of than an Unconsolidated Affiliate Guaranteeing, Excluded Subsidiary guaranteeing or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(B) (i) such Subsidiary owns an Unencumbered Asset or other asset the value of which is included in the determination of Unencumbered Asset Value and (ii) such Person Subsidiary, or any other Subsidiary that directly or indirectly owns any Equity Interest in such Subsidiary, has incurred, acquired or suffered to exist any Recourse Indebtedness (other than Recourse Indebtedness which, together with all other such Indebtedness of Subsidiaries owning Unencumbered Assets or other assets the value of which is an RD Entity, unless included in the determination of Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) and that are not Guarantors, does not exceed 10.0% of the Unencumbered Asset Value$1,000,000 at any time outstanding).
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iiiii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (iviii) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents; and (iv) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 1 contract
Guarantors. (a) Within 5 10 Business days Days following the date on which any either of the following conditions first applies to any Subsidiary or Unconsolidated Affiliate (other than a Foreign Subsidiary) that is not already a Guarantor, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate deliver to execute the Administrative Agent each of the following in form and deliver substance satisfactory to the Administrative Agent: (i) an Accession Agreement (or if the Guaranty is not then in effect, the Guaranty) and (ii) the items that would have been delivered under subsections (iviii) through (viii) vii), and (xiiixii) of Section 5.1.(a) and Section 5.1.(b) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor Loan Party on the Agreement Date:
(iA) such Person Subsidiary Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) Borrower or any other Subsidiary of the Parent, the Borrower (other than an Excluded Subsidiary or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, a Foreign Subsidiary Guaranteeing or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary or Foreign Subsidiary, as applicable); or
(B) (i) such Subsidiary (other than a Foreign Subsidiary) owns an Unencumbered Asset or other asset the value of which is included in the determination of Unencumbered Asset Value and (ii) such Person Subsidiary, or any other Subsidiary that directly or indirectly owns any Equity Interest in such Subsidiary, has incurred, acquired or suffered to exist any Indebtedness that is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset ValueNonrecourse Indebtedness.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required (or upon its release will not be required) to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iiiii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (iviii) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents; and (iv) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 1 contract
Guarantors. (a) Within 5 Business days following the date on which any of the following conditions applies to any Subsidiary or Unconsolidated Affiliate that is not already a Guarantor, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate to execute and deliver an Accession Agreement and the items that would have been delivered under subsections (iv) through (viii) and (xiiixii) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement Date:
(i) such Person Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, Parent or the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded SubsidiaryAffiliate); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset Value.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guarantyrelease, and upon receipt of such written request by the Administrative AgentAgent shall release, such a Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents; and (v) the Administrative Agent shall have received such written request at least ten (10) days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
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Guarantors. (a) Within 5 Business days following Subject to clauses (b) and (c) below, the date on which any Borrower at all times shall cause all of the following conditions applies Wholly-Owned Subsidiaries that are guarantors of either or both of (i) the Senior Notes (or any replacement or refinancing debt in respect thereof) and (ii) the obligations under the Existing Credit Agreement (or any replacement or refinancing debt in respect thereof), to be Guarantors.
(b) Within thirty (30) days after any Wholly-Owned Subsidiary becomes a guarantor of the Senior Notes (or Unconsolidated Affiliate that is not already a Guarantorany replacement or refinancing debt in respect thereof) or the Existing Credit Agreement (or any replacement or refinancing debt in respect thereof), the Parent and the Borrower shall cause such Wholly-Owned Subsidiary or Unconsolidated Affiliate to execute and deliver an Accession Agreement and a Joinder to the items that would have been delivered under subsections Administrative Agent.
(ivc) through (viii) and (xiii) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement Date:
If at any time (i) such Person Guarantees, a Guarantor ceases to be a guarantor of the Senior Notes (or otherwise becomes obligated any replacement or refinancing debt in respect of, any Indebtedness of (1thereof) the Parent; (2) the Borrower; (3) any other Subsidiary and ceases to be a guarantor of the Parent, the Borrower Existing Credit Agreement (or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, replacement or otherwise becoming obligated refinancing debt in respect ofthereof), Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person a Guarantor is an RD Entitydissolved, unless sold, merged, amalgamated or otherwise disposed of in a manner permitted by this Agreement or (iii) the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% outstanding principal amount of the Unencumbered Asset Value.
Senior Notes (bor any replacement or refinancing debt in respect thereof) The Borrower may request in writing that the Administrative Agent release is equal to or less than $150,000,000 and a Guarantor from ceases to be a guarantor of the GuarantyExisting Credit Agreement (or any replacement or refinancing debt in respect thereof), and upon receipt of such written request by the Administrative Agent, (A) such Guarantor shall be automatically released from the Guaranty its obligations hereunder, without the any need for any formal action by the execution Administrative Agent or delivery Lender, and (B) the Borrower shall provide notice of any other document such event to the Administrative Agent. Upon the written request of the Borrower, the Administrative Agent shall execute any documents reasonably requested by any other Person so long as the Borrower provides a written certificate together with such written notice certifying that: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required in order to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with acknowledge the release of any such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur from its obligations as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1Guarantor.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents.
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Guarantors. (a) Within 5 Business days following the date on which any of the following conditions applies to any Subsidiary or Unconsolidated Affiliate that is not already a Guarantor, the Parent and the The Borrower shall cause such Subsidiary each of its Restricted Subsidiaries (other than Immaterial Subsidiaries) to guarantee pursuant to the Guaranty Agreement or Unconsolidated Affiliate to execute and deliver an Accession Agreement and the items that would have been delivered under subsections supplement thereto (iv) through (viii) and (xiii) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement Date:
(i) such Person Guaranteesor, or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeinga Foreign Subsidiary, any other guaranty agreement requested by the Administrative Agent) the Secured Obligations. In furtherance of the above, after the formation or otherwise becoming obligated acquisition of any Restricted Subsidiary or a Subsidiary Redesignation, the Borrower shall promptly (and in respect ofany event upon the earlier of (x) such time as such Restricted Subsidiary becomes a guarantor, Indebtedness of another Unconsolidated Affiliate co-borrower or other obligor under the Prudential Financing and (y) within 45 days after such formation or acquisition or Subsidiary Redesignation (with any such LEGAL02/36800330v21 time limit permitted to be extended by the Collateral Agent in its reasonable discretion)) (i) provide written notice to the case Administrative Agent and the Lenders upon any Person becoming a Restricted Subsidiary, setting forth information in reasonable detail describing all of an Excluded Subsidiary Guaranteeingthe assets of such Person, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) cause such Person is an RD Entity(other than any Immaterial Subsidiary) to execute a supplement to the Guaranty Agreement and such other Collateral Documents as are necessary for the Borrower and its Subsidiaries to comply with Section 5.11, unless (iii) cause the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% Applicable Pledge Percentage of the Unencumbered Asset Value.
issued and outstanding equity interests of such Person and each other Pledge Subsidiary to be delivered to the Collateral Agent (btogether with undated stock powers signed in blank, if applicable) The Borrower may request and pledged to the Collateral Agent pursuant to an appropriate pledge agreement(s) in writing that substantially the form of the Pledge and Security Agreement (or joinder or other supplement thereto) and otherwise in form reasonably acceptable to the Administrative Agent release a Guarantor from and (iv) deliver such other documentation as the GuarantyAdministrative Agent may reasonably request in connection with the foregoing, including, without limitation, certified resolutions and upon receipt other authority documents of such written request Person and, to the extent requested by the Administrative Agent, favorable opinions of counsel to such Guarantor Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above), all in form, content and scope reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Foreign Subsidiary shall be automatically released from required to execute and deliver the Guaranty without the need for the Agreement (or supplement thereto) or such other guaranty agreement if such execution and delivery would cause a Deemed Dividend Problem or delivery of any other document by any other Person so long as the Borrower provides a written certificate together Financial Assistance Problem with respect to such written notice certifying that: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor Foreign Subsidiary and, in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such releaselieu thereof, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents relevant Restricted Subsidiaries shall provide the pledge agreements required under this Section 5.10 or Section 5.11. Notwithstanding the foregoing, the Borrower will be required to which comply with this Section with respect to any of them is a party, shall Immaterial Subsidiary if it ceases to be true and correct in all material respects (except in an Immaterial Subsidiary under the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as terms of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documentsdefinition thereof.
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Guarantors. (a) Within 5 Business days following the date on which any of the following conditions applies to any Subsidiary or Unconsolidated Affiliate that is not already a Guarantor, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate to execute and deliver an Accession Agreement and the items that would have been delivered under subsections (iv) through (viii) and (xiiixii) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement Date:
(i) such Person Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of (1) the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset Value.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guaranty, and upon receipt of such written request by the Administrative Agent, such Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying that: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents.
(j) The Credit Agreement is further amended by restating Section 9.1.(b) thereof in its entirety as follows:
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Guarantors. (a) Within 5 Business days following the date on which any of the following conditions applies to any The Company will cause each Subsidiary or Unconsolidated Affiliate that is not already or becomes a borrower or guarantor under or in respect of any Principal Credit Facility to become a Guarantor, prior to or concurrently with so becoming a borrower or a guarantor as aforesaid, by causing such Person (a “Guarantor”), at the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate Company’s expense, to execute and and/or deliver an Accession Agreement and to each holder of Notes, to the items that would have been delivered under subsections (iv) through (viii) and (xiii) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement Dateextent not prohibited by applicable law:
(i) (A) a Guaranty Agreement in substantially the form of Exhibit 9.7 hereto (or a Joinder Agreement to such Person GuaranteesGuaranty Agreement in substantially the form of Exhibit A thereto) pursuant to which such Subsidiary shall agree, inter alia, to guarantee the Obligations, or (B) a guarantee agreement otherwise becomes obligated in respect of, any Indebtedness of (1) form and substance reasonably satisfactory to the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); orRequired Holders;
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% copies of the Unencumbered Asset ValueOrganizational Documents of such Guarantor, resolutions of the board of directors (or other similar governing body) of such Guarantor authorizing its execution and delivery of the Subsidiary Guaranty by such Guarantor and the transactions contemplated thereby, and specimen signatures of authorized officers of such Guarantor (in each case, certified as correct and complete copies by the secretary or an assistant secretary (or an equivalent officer) of such Guarantor); and
(iii) an opinion of counsel to such Guarantor with respect to the Subsidiary Guaranty executed by such Guarantor, which opinion may be subject to customary qualifications and limitations, to the effect that: (A) the applicable Subsidiary Guaranty has been duly executed and authorized, (B) such Subsidiary Guaranty constitutes a valid, binding and enforceable obligation of such Guarantor, except insofar as enforcement thereof may be limited by bankruptcy, insolvency or similar laws (including, without limitation, all laws relating to fraudulent transfers) and except insofar as enforcement thereof is subject to general principles of equity and (C) except as could not reasonably be expected to result in a Material Adverse Effect, the execution, delivery and performance by the Guarantor of the Subsidiary Guaranty will not (1) contravene, result in any breach of, or constitute a default under any corporate charter or by-laws or similar organizational documents of such Guarantor, (2) conflict with or result in a breach of the express terms or conditions of material Indebtedness of the Company or such Guarantor, or (3) violate any provision of any Federal or state (which may be limited to the state(s) in which such counsel is admitted to practice) statute or other rule or regulation.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the Guaranty, and upon receipt of such written request by the Administrative Agent, such Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying that: Upon (i) delivery to the Company of a consent executed by the Required Holders with respect to a Guarantor (but subject to the provisions of Section 17.2(c) hereof), (ii) any sale, exchange or transfer (by merger or otherwise) of the Capital Stock of a Guarantor, after which such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required to be no longer a party to the Guaranty under the immediately preceding subsection (a) (other than Subsidiary or a Guarantor in respect of the Existing Credit Agreement Permitted Joint Venture, or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default the sale or Event disposition of Default all the assets of such Guarantor, which sale, exchange, transfer or disposition is made in compliance with the applicable provisions of Section 10.2 (but only if such Guarantor will not be a borrower or guarantor of obligations outstanding under any Principal Credit Facility after giving effect to such transaction), such Person shall then automatically be in existence or would occur released as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of Guarantor under the covenants contained in Section 9.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents Subsidiary Guaranty to which any of them it is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of party with effect from the date of such release with the same force and effect event under clause (i), (ii) or (iii), as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documentsapplicable.
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Guarantors. (a) Within 5 Business days following the date on which If during any of the following conditions applies to any fiscal quarter (i) a Subsidiary that should be a Parent Guarantor is organized or Unconsolidated Affiliate acquired, (ii) a Subsidiary that is not already a GuarantorGuarantor and is not an Excluded Subsidiary becomes a borrower or a guarantor of, or otherwise becomes obligated to make any payment in respect of, any Unsecured Indebtedness, or (iii) prior to the Investment Grade Election, a Subsidiary that is not already a Guarantor (A) obtains an ownership interest in any Eligible Property, (B) generates any Unencumbered Management Fee EBITDA, (C) is not an Excluded Subsidiary and becomes a Material Subsidiary, or (D) is not a Parent Guarantor and becomes an owner, directly or indirectly, of any Equity Interests in any Captive Insurance Subsidiary or in any Subsidiary that is a Guarantor or is other described in this clause (iii), then not later than the date of the delivery of the financial statements required to be delivered pursuant to Sections 6.1(a) or (b), as applicable, with respect to such fiscal quarter, the Borrower shall provide the Administrative Agent with written notice thereof and shall cause each such Subsidiary or Unconsolidated Affiliate to execute deliver to the Administrative Agent a joinder to the Guaranty (in the form contemplated thereby) pursuant to which such Subsidiary agrees to be bound by the terms and deliver provisions thereof, such Guaranty joinders to be accompanied by an Accession Agreement updated Schedule 5.7 hereto designating such Subsidiary as such and the items appropriate corporate, limited liability company, limited partnership or equivalent resolutions and other associated documentation and legal opinions that would have been delivered under subsections (iv) through (viiiSections 4.1(c) and (xiii) of Section 5.1.(ae) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor Subsidiary on the Agreement Effective Date:
(i) , in each case in form and substance reasonably satisfactory to the Administrative Agent and its counsel, and such Person Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of (1) other documentation as the Parent; (2) the Borrower; (3) any other Subsidiary of the Parent, the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset ValueAdministrative Agent may reasonably request.
(b) The Borrower may request in writing that the Administrative Agent release a Guarantor from the GuarantyGuarantor, and upon receipt of such written request by the Administrative Agentother than any Parent Guarantor, such Guarantor shall be automatically released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying thatas: (i) such Guarantor is not the Parentowns no Eligible Property, nor any direct or indirect equity interest in any Subsidiary that owns an Eligible Property; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.6.16; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (v) the Administrative Agent shall have received such written request (which such request shall include a certificate of an Authorized Signatory of the Borrower certifying the matters referred to in the immediately preceding clauses (i) through (iv)) at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request. Upon satisfaction of the conditions set forth above, the applicable Guarantor shall be automatically released on the requested release date without any other notice to or from the Administrative Agent or any Lender.
(c) If the Investment Grade Election is made, the Administrative Agent shall promptly release all of the Guarantors described in clauses (d) and (e) of the definition of “Guarantor” from their obligations under the Guaranty (the “Investment Grade Release”), subject to satisfaction of the following conditions:
(i) the Borrower shall have delivered to the Administrative Agent, on or prior to the date that is five (5) Business Days (or such shorter period of time as agreed to by the Administrative Agent) before the date on which the Investment Grade Release is to be effected, written notice that it is requesting the Investment Grade Release, which notice shall identify the Subsidiary Guarantors to be released and the proposed effective date for the Investment Grade Release; and
(ii) On the date the Investment Grade Release is to become effective, the Administrative Agent shall have received a certificate signed by an Authorized Signatory of the Borrower, certifying that:
(A) the Investment Grade Election have been made;
(B) no Subsidiary Guarantor to be released is a borrower or guarantor of, or otherwise has a payment obligation in respect of, any Unsecured Indebtedness; and
(C) at the time of the delivery of notice requesting such release, on the proposed effective date of the Investment Grade Release and immediately before and immediately after giving effect to the Investment Grade Release, (x) no Default or Event of Default has occurred and is continuing or would result therefrom and (y)
(1) no Default or Event of Default has occurred and is continuing and (2) the representations and warranties contained in Article V are (I) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all respects on and as of such earlier date and (II) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all material respects on and as of such earlier date.
(d) Upon the release of any Person pursuant to this Section 6.17, the Administrative Agent shall (to the extent applicable) deliver to the Loan Parties, upon the Loan Parties’ request and at the Loan Parties’ expense, such documentation as is reasonably requested by the Borrower (and reasonably satisfactory to the Administrative Agent) or is necessary to evidence the release of such Person from its obligations under the Loan Documents.
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