Additional Guarantors; Release of Guarantors. (a) No later than the date the Borrower is required to deliver a Compliance Certificate pursuant to Section 7.02(a) with respect to a fiscal quarter (or fiscal year in the case of the fourth fiscal quarter of a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any Subsidiary, the Borrower shall cause such Subsidiary to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose) each of the following in form and substance satisfactory to the Administrative Agent: (i) a counterpart of the Guaranty or such other document as the Administrative Agent may deem appropriate for such purpose executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; provided, however, the requirement for delivery of a legal opinion referred to in Section 5.01(a)(v) shall only apply to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributable. (b) The Borrower may notify the Administrative Agent in writing that a Guarantor (other than the Parent) is to be released from the Guaranty, and following receipt of such notice the Administrative Agent shall release such Guarantor from the Guaranty, so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a); (ii) no Default shall then be in existence or would occur as a result of such release; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received such written notice 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 notice 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. Unless the Administrative Agent notifies the Borrower otherwise, such Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense of the Borrower) to evidence the release of a Guarantor from the Guaranty.
Appears in 4 contracts
Samples: Term Loan Agreement (Agree Realty Corp), Revolving Credit Agreement (Agree Realty Corp), Term Loan Agreement (Agree Realty Corp)
Additional Guarantors; Release of Guarantors. (a) No later than Pursuant to Section 7.12 of the date the Borrower is Term Loan Agreement, Material Subsidiaries that are not also Excluded Subsidiaries are required to deliver a Compliance Certificate pursuant to Section 7.02(a) with respect to a fiscal quarter (or fiscal year in the case of the fourth fiscal quarter of a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any Subsidiarybecome Guarantors by, the Borrower shall cause such Subsidiary to become a Guarantor by among other things, executing and delivering to Administrative Agent a Joinder Agreement. Any Subsidiary which executes and delivers to the Administrative Agent a counterpart Joinder Agreement shall be a Guarantor for all purposes hereunder. Under certain circumstances described in Section 7.12(b) of the Guaranty (or such other document as Term Loan Agreement, certain Subsidiaries may obtain from the Administrative Agent, if the Administrative Agent shall deem appropriate for such purpose) each of is authorized to do so under the following in form and substance satisfactory Term Loan Agreement, a written release from this Guaranty pursuant to the Administrative Agent: (i) a counterpart provisions of the Guaranty or such other document as the Administrative Agent may deem appropriate for Section 7.12, and upon obtaining such purpose executed by written release, any such Subsidiary and (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been shall no longer be a Subsidiary on the date of this Agreement; Guarantor hereunder, provided, however, that the requirement for delivery of a legal opinion referred conditions to such release set forth in such Section 5.01(a)(v7.12(b) shall only apply are satisfied immediately before giving effect to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributable.
(b) The Borrower may notify the Administrative Agent in writing that a Guarantor (other than the Parent) is to be released from the Guaranty, and following receipt of such notice the Administrative Agent shall release such Guarantor from the Guaranty, so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a); (ii) no Default shall then be in existence or would occur as a result of such release; (iii) . In the representations event any such conditions to such release are later found to have not been satisfied, then any such release shall be deemed null and warranties made or deemed made by void and the Affiliate of the Borrower and each other Loan Party in that was the Loan Documents to which any of them is a party, shall be true and correct on and as of the date subject 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received such written notice 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 notice 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. Unless the Administrative Agent notifies the Borrower otherwise, such Guarantor shall instead be deemed to have been released from its Guaranty upon the later to occur remained a Guarantor hereunder for all purposes of ten (10) Business Days following the Administrative Agent’s receipt of such notice and the date set forth in such notice as the requested date of releasethis Guaranty. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense of the Borrower) to evidence the A release of a Guarantor from the GuarantyGuaranty pursuant to Section 7.12(b) shall not waive any later requirement which may arise under Section 7.12(a) pursuant to which such released Guarantor would be obliged to become party hereto as a Guarantor. Each other Guarantor consents and agrees to any such release and agrees that no such release shall affect its obligations hereunder.
Appears in 2 contracts
Samples: Term Loan Agreement (Colonial Realty Limited Partnership), Guaranty (Colonial Realty Limited Partnership)
Additional Guarantors; Release of Guarantors. (a) No later than In the date event that the Borrower shall request that certain Real Estate of a Wholly-Owned Subsidiary of the Borrower be included as a Mortgaged Property as contemplated by §5.3(a) and such Real Estate is required included as a Mortgaged Property in accordance with the terms hereof, the Borrower shall, as a condition to such Real Estate being included as a Mortgaged Property, cause each such Wholly-Owned Subsidiary, to execute and deliver to the Agent a Compliance Certificate pursuant to Section 7.02(a) with respect to Joinder Agreement, and such Subsidiary shall become a fiscal quarter (or fiscal year Guarantor hereunder and thereunder. In addition, in the case event any Subsidiary of the fourth fiscal quarter of Borrower shall constitute a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any Material Subsidiary, the Borrower shall promptly cause such Subsidiary to execute and deliver to Agent a Joinder Agreement, and such Subsidiary shall become a Guarantor by executing hereunder and delivering thereunder. Each such Subsidiary shall be specifically authorized, in accordance with its respective organizational documents, to be a Guarantor hereunder and thereunder and to execute the Contribution Agreement and such Security Documents as the Agent may require. The Borrower shall further cause all representations, covenants and agreements in the Loan Documents with respect to the Administrative Guarantors to be true and correct with respect to each such Subsidiary. In connection with the delivery of such Joinder Agreement, the Borrower shall deliver to the Agent a counterpart of the Guaranty (or such organizational agreements, resolutions, consents, opinions and other document documents and instruments as the Administrative Agent shall deem appropriate for such purpose) each of the following in form and substance satisfactory to the Administrative Agent: (i) a counterpart of the Guaranty or such other document as the Administrative Agent may deem appropriate for such purpose executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; provided, however, the requirement for delivery of a legal opinion referred to in Section 5.01(a)(v) shall only apply to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributablereasonably require.
(b) The Borrower may notify In the Administrative Agent event that all Mortgaged Properties owned by a Subsidiary Guarantor shall have been released as Collateral for the Obligations and Hedge Obligations in writing that a accordance with the terms of this Agreement, then such Subsidiary Guarantor (other than the Parent) is to shall be released by Agent from the Guarantyliability under this Agreement, and following receipt of such notice the Administrative Agent shall release such Guarantor from the Guaranty, so long as: (i) either (A) simultaneously with its release from the Guaranty provided that such Subsidiary will cease to be a Subsidiary or (B) such Guarantor is not otherwise required to be a party Guarantor.
(c) The Borrower may request in writing that the Agent release, and upon receipt of such request the Agent shall release (subject to the terms hereof), a Subsidiary Guarantor that is a Guarantor solely by virtue of being a Material Subsidiary from the Guaranty under the immediately preceding subsection so long as: (a); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release; (iiiii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received such written notice request at least 10 ten (10) Business Days (or such shorter period as Agent may be acceptable to the Administrative Agentapprove) prior to the requested date of release; (iii) such Subsidiary Guarantor is not the owner of a Mortgaged Property; and (iv) the Borrower shall deliver to Agent evidence reasonably satisfactory to Agent that (A) the Borrower has disposed of or simultaneously with such release will dispose of its entire interest in such Guarantor or that all of the assets of such Guarantor will be disposed of in compliance with the terms of this Agreement, and if such transaction involves the disposition by such Guarantor of all of its assets, the net cash proceeds, if any, from such disposition are being distributed to the Borrower in connection with such disposition, or (B) such Guarantor will be the borrower with respect to Secured Indebtedness that is not prohibited under this Agreement, which Indebtedness will be secured by a Lien on the assets of such Guarantor, and the provisions of such Secured Indebtedness make such Subsidiary Guarantor an Excluded Subsidiary, or (C) the Borrower has contributed or simultaneously with such release will contribute its entire direct or indirect interest in such Guarantor to an Unconsolidated Affiliate in compliance with the terms of this Agreement, or (D) such Guarantor is an Excluded Subsidiary. Delivery by the Borrower to the Administrative Agent of any such notice request for a release 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. Unless the Administrative Agent notifies the Borrower otherwise.
(d) The provisions of §5.4(b) and (c) shall not entitle Borrower, such Guarantor shall be deemed General Partner or REIT to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense of the Borrower) to evidence the any release of a Guarantor from the GuarantyLoan Documents.
Appears in 2 contracts
Samples: Credit Agreement (GTJ Reit, Inc.), Credit Agreement (GTJ REIT, Inc.)
Additional Guarantors; Release of Guarantors. (a) No later If (x) any Person (other than a Non-Guarantor Subsidiary) becomes a Material Subsidiary of the date Principal Borrower, (y) at any time any Non-Guarantor Subsidiary qualifying as such as a result of clauses (a), (b) or (c) of the definition thereof could become a Loan Party without violating the terms of any material contract, agreement or document to which it is a party, or (z) a Subsidiary of the Principal Borrower is required to deliver a Compliance Certificate pursuant to Section 7.02(a) with guarantees, or otherwise becomes obligated in respect to a fiscal quarter (or fiscal year of, any Unsecured Debt of the Consolidated Parties, the Principal Borrower shall, contemporaneously, in the case of clause (z), and within thirty (30) days after delivery of the fourth fiscal quarter Quarterly Subsidiary Joinder Statement pursuant to Section 6.02(b)(i) (or such longer period as may be agreed to by the Administrative Agent) in the case of clauses (x) and (y), (i) if such Person is a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any SubsidiaryDomestic Subsidiary of the Principal Borrower, the Borrower shall cause such Subsidiary Person to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose, and (ii) each cause such Person to deliver to the Administrative Agent documents of the following types referred to in form clauses (iii) and substance (iv) of Section 4.01(a), all in form, content and scope reasonably satisfactory to the Administrative Agent: ; provided, that to the extent such Person holds (i) a counterpart whether upon delivery of the Guaranty items required above or such other document as at any time after the delivery of the items required above) assets with a fair market value in excess of $5,000,000 or to the extent requested by Administrative Agent, the Borrowers shall cause to be delivered to the Administrative Agent may deem appropriate for favorable opinions of counsel to such purpose executed by such Subsidiary and Person (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; providedwhich shall cover, howeveramong other things, the requirement for delivery legality, validity, binding effect and enforceability of a legal opinion the documentation referred to in Section 5.01(a)(v) this clause (a)). If a Non-Guarantor Subsidiary executes and delivers the Guaranty, it shall only apply to no longer be deemed a Non-Guarantor Subsidiary to which $15,000,000 or more of Total Asset Value is attributableunder this Agreement.
(b) The Notwithstanding any other provisions of this Agreement to the contrary, to the extent a Guarantor anticipates becoming or intends to become a Non-Guarantor Subsidiary pursuant to any of clauses (b), (c) or (d) of the definition thereof, the Principal Borrower may notify request a release of such Guarantor as a Guarantor hereunder in accordance with the following:
(i) the Principal Borrower shall deliver to the Administrative Agent, not less than ten (10) days and not more than thirty (30) days prior to the anticipated or intended conversion of a Guarantor into a Non-Guarantor Subsidiary, a written request for release of the applicable Guarantor and a pro forma compliance certificate of the chief financial officer of the Principal Borrower in form and substance acceptable to the Administrative Agent, (A) demonstrating that upon such release the Loan Parties will on a pro forma basis continue to comply with (1) the financial covenants contained in Section 7.08 and (2) the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any Consolidated Party, in each case by a reasonably detailed calculation thereof (which calculation shall be in form reasonably satisfactory to the Administrative Agent and which shall include, among other things, an explanation of the methodology used in writing that such calculation and a Guarantor (other than breakdown of the Parent) is to be released from the Guaranty, and following receipt components of such notice the Administrative Agent shall release such Guarantor from the Guarantycalculation), so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) stating that the Loan Parties will be in compliance with each of the covenants set forth in Articles VI and VII of the Agreement at all times following such Guarantor is not otherwise required release, (C) stating that, following such release, no Default or Event of Default will exist under the Agreement or any of the other Loan Documents, or if any Default or Event of Default will exist, specifying the nature and extent thereof and what action the Loan Parties propose to be a party take with respect thereto, and (D) attaching, pursuant to Section 5.13 of the Agreement, an updated version of Schedule 5.13 to the Guaranty under the immediately preceding subsection (a); Agreement;
(ii) no Default shall then be in existence or would occur as a result of such release; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received reviewed and approved (in writing) the request for release and pro forma compliance certificate delivered pursuant to subclause (i) above; provided, that the failure of the Administrative Agent to respond to such written notice at least 10 Business Days a request within ten (or such shorter period as may be acceptable to 10) days of its receipt thereof shall constitute the Administrative Agent’s approval thereof; provided, that any approval of the Administrative Agent provided pursuant to this subclause (ii) shall lapse and be null and void thirty (30) days following the granting thereof if the applicable Guarantor has not, on or prior to the requested date completion of release. Delivery such period, met the criteria for qualification as a Non-Guarantor Subsidiary (as evidenced by the delivery by the Principal Borrower of a notice and certification in accordance with subclause (iii) below); and
(iii) the Principal Borrower shall, concurrently with or promptly following the applicable Guarantor’s satisfaction of the criteria for qualification as a Non-Guarantor Subsidiary deliver to the Administrative Agent a notice and certification of such qualification. Notwithstanding any language to the contrary above, so long as the chief financial officer of the Principal Borrower has certified in a compliance certificate (and the Administrative Agent has no evidence or information which brings into reasonable doubt the veracity of such certifications) that: (A) upon such release the Loan Parties (1) will on a pro forma basis continue to comply with the financial covenants contained in Section 7.08 hereof, and the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any such notice shall constitute a representation by Consolidated Party, and (2) will be in compliance with each of the Borrower that the matters covenants set forth in the preceding sentence (both as Articles VI and VII of the date Agreement at all times following such release, (B) following such release, no Default or Event of Default will exist under this Agreement or any of the giving other Loan Documents, or if any Default or Event of such request Default will exist, the nature and as extent thereof and what action the Loan Parties propose to take with respect thereto will be specified, and (C) attached pursuant to Section 5.13 of the date Agreement, is an updated version of Schedule 5.13 to the effectiveness of such request) are true Agreement, the request for release shall be approved and correct with respect to such request. Unless issued by the Administrative Agent notifies within the Borrower otherwiseten (10)-day time period specified in subsection (b)(ii). Upon satisfaction of each of the above-noted conditions, such a Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice obligations hereunder and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense under each of the Borrower) to evidence the release of a Guarantor from the GuarantyLoan Documents.
Appears in 2 contracts
Samples: Credit Agreement (Highwoods Realty LTD Partnership), Credit Agreement (Highwoods Realty LTD Partnership)
Additional Guarantors; Release of Guarantors. (a) No later than the date the Borrower is required to deliver a Compliance Certificate pursuant to Section 7.02(a) with respect to a fiscal quarter (or fiscal year in the case of the fourth fiscal quarter of a fiscal year) during which any Required Guarantee Condition is satisfied with respect (x) a Person became a Subsidiary (other than an Excluded Subsidiary or an Immaterial Subsidiary), (y) an Excluded Subsidiary ceased to any be subject to the restriction which prevented it from becoming a Guarantor on the Closing Date or pursuant to this Section or (z) the value of the assets of an Immaterial Subsidiary precluded it from continuing to qualify as an Immaterial Subsidiary, the Borrower shall cause such Subsidiary to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose) each of the following in form and substance satisfactory to the Administrative Agent: (i) a counterpart of the Guaranty or such other document as the Administrative Agent may deem appropriate for such purpose executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this AgreementAgreement Date; provided, however, the requirement for delivery of a legal opinion referred to in Section 5.01(a)(v) shall only apply to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributable.
(b) The Borrower may notify the Administrative Agent in writing that a Guarantor (other than the Parent) is to be released from the Guaranty, and following receipt of such notice the Administrative Agent shall release such Guarantor from the Guaranty, so long as: (i) either (A) simultaneously with upon its release from the Guaranty such Subsidiary will either become an Excluded Subsidiary or an Immaterial Subsidiary or shall cease to be a Subsidiary or (B) such Guarantor is not otherwise required to be of the Borrower, in each case, as a party to the Guaranty under the immediately preceding subsection (a)result of a transaction permitted hereunder; (ii) no Default shall then be in existence or would occur as a result of such release, including without limitation; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received such written notice 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 notice 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. Unless the Administrative Agent notifies the Borrower otherwise, such Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense of the Borrower) to evidence the release of a Guarantor from the Guaranty.
Appears in 2 contracts
Samples: Term Loan Agreement (Agree Realty Corp), Revolving Credit and Term Loan Agreement (Agree Realty Corp)
Additional Guarantors; Release of Guarantors. (a) No later If (x) any Person (other than a Non-Guarantor Subsidiary) becomes a Material Subsidiary of the date Principal Borrower, (y) at any time any Non-Guarantor Subsidiary qualifying as such as a result of clauses (a), (b) or (c) of the definition thereof could become a Loan Party without violating the terms of any material contract, agreement or document to which it is a party, or (z) a Subsidiary of the Principal Borrower is required to deliver a Compliance Certificate pursuant to Section 7.02(a) with guarantees, or otherwise becomes obligated in respect to a fiscal quarter (or fiscal year of, any Unsecured Debt of the Consolidated Parties, the Principal Borrower shall, contemporaneously, in the case of clause (z), and within thirty (30) days after delivery of the fourth fiscal quarter Quarterly Subsidiary Joinder Statement pursuant to Section 6.02(b)(i) (or such longer period as may be agreed to by the Administrative Agent) in the case of clauses (x) and (y), (i) if such Person is a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any SubsidiaryDomestic Subsidiary of the Principal Borrower, the Borrower shall cause such Subsidiary Person to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose, and (ii) each cause such Person to deliver to the Administrative Agent documents of the following types referred to in form clauses (iii) and substance (iv) of Section 4.01(a), all in form, content and scope reasonably satisfactory to the Administrative Agent: ; provided that to the extent such Person holds (i) a counterpart whether upon delivery of the Guaranty items required above or such other document as at any time after the delivery of the items required above) assets with a fair market value in excess of $5,000,000 or to the extent requested by Administrative Agent, the Borrowers shall cause to be delivered to the Administrative Agent may deem appropriate for favorable opinions of counsel to such purpose executed by such Subsidiary and Person (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; providedwhich shall cover, howeveramong other things, the requirement for delivery legality, validity, binding effect and enforceability of a legal opinion the documentation referred to in Section 5.01(a)(v) this clause (a)). If a Non-Guarantor Subsidiary executes and delivers the Guaranty, it shall only apply to no longer be deemed a Non-Guarantor Subsidiary to which $15,000,000 or more of Total Asset Value is attributableunder this Agreement.
(b) The Notwithstanding any other provisions of this Agreement to the contrary, to the extent a Guarantor anticipates becoming or intends to become a Non-Guarantor Subsidiary pursuant to any of clauses (b), (c) or (d) of the definition thereof, the Principal Borrower may notify request a release of such Guarantor as a Guarantor hereunder in accordance with the following:
(i) the Principal Borrower shall deliver to the Administrative Agent, not less than ten (10) days and not more than thirty (30) days prior to the anticipated or intended conversion of a Guarantor into a Non-Guarantor Subsidiary, a written request for release of the applicable Guarantor and a pro forma compliance certificate of the chief financial officer of the Principal Borrower in form and substance acceptable to the Administrative Agent, (A) demonstrating that upon such release the Loan Parties will on a pro forma basis continue to comply with (1) the financial covenants contained in Section 7.08 and (2) the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any Consolidated Party, in each case by a reasonably detailed calculation thereof (which calculation shall be in form reasonably satisfactory to the Administrative Agent and which shall include, among other things, an explanation of the methodology used in writing that such calculation and a Guarantor (other than breakdown of the Parent) is to be released from the Guaranty, and following receipt components of such notice the Administrative Agent shall release such Guarantor from the Guarantycalculation), so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) stating that the Loan Parties will be in compliance with each of the covenants set forth in Articles VI and VII of the Agreement at all times following such Guarantor is not otherwise required release, (C) stating that, following such release, no Default or Event of Default will exist under the Agreement or any of the other Loan Documents, or if any Default or Event of Default will exist, specifying the nature and extent thereof and what action the Loan Parties propose to be a party take with respect thereto, and (D) attaching, pursuant to Section 5.13 of the Agreement, an updated version of Schedule 5.13 to the Guaranty under the immediately preceding subsection (a); Agreement;
(ii) no Default shall then be in existence or would occur as a result of such release; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received reviewed and approved (in writing) the request for release and pro forma compliance certificate delivered pursuant to subclause (i) above; provided that the failure of the Administrative Agent to respond to such written notice at least 10 Business Days a request within ten (or such shorter period as may be acceptable to 10) days of its receipt thereof shall constitute the Administrative Agent’s approval thereof; provided that any approval of the Administrative Agent provided pursuant to this subclause (ii) shall lapse and be null and void thirty (30) days following the granting thereof if the applicable Guarantor has not, on or prior to the requested date completion of release. Delivery such period, met the criteria for qualification as a Non-Guarantor Subsidiary (as evidenced by the delivery by the Principal Borrower of a notice and certification in accordance with subclause (iii) below); and
(iii) the Principal Borrower shall, concurrently with or promptly following the applicable Guarantor’s satisfaction of the criteria for qualification as a Non-Guarantor Subsidiary deliver to the Administrative Agent a notice and certification of such qualification. Notwithstanding any language to the contrary above, so long as the chief financial officer of the Principal Xxxxxxxx has certified in a compliance certificate (and the Administrative Agent has no evidence or information which brings into reasonable doubt the veracity of such certifications) that: (A) upon such release the Loan Parties (1) will on a pro forma basis continue to comply with the financial covenants contained in Section 7.08 hereof, and the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any such notice shall constitute a representation by Consolidated Party, and (2) will be in compliance with each of the Borrower that the matters covenants set forth in the preceding sentence (both as Articles VI and VII of the date Agreement at all times following such release, (B) following such release, no Default or Event of Default will exist under this Agreement or any of the giving other Loan Documents, or if any Default or Event of such request Default will exist, the nature and as extent thereof and what action the Loan Parties propose to take with respect thereto will be specified, and (C) attached pursuant to Section 5.13 of the date Agreement, is an updated version of Schedule 5.13 to the effectiveness of such request) are true Agreement, the request for release shall be approved and correct with respect to such request. Unless issued by the Administrative Agent notifies within the Borrower otherwiseten (10)-day time period specified in subsection (b)(ii). Upon satisfaction of each of the above-noted conditions, such a Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice obligations hereunder and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense under each of the Borrower) to evidence the release of a Guarantor from the GuarantyLoan Documents.
Appears in 2 contracts
Samples: Credit Agreement (Highwoods Realty LTD Partnership), Credit Agreement (Highwoods Realty LTD Partnership)
Additional Guarantors; Release of Guarantors. (a) No later If any Person (other than a Non-Guarantor Subsidiary) becomes a Subsidiary of the date Principal Borrower or upon the formation of any Preferred Stock Subsidiary or if at any time any Non-Guarantor Subsidiary qualifying as such as a result of clauses (a), (b) or (c) of the definition thereof could become a Loan Party without violating the terms of any material contract, agreement or document to which it is a party, the Principal Borrower is required to deliver a Compliance Certificate shall, within thirty (30) days after delivery of the Quarterly Subsidiary Joinder Statement pursuant to Section 7.02(a6.02(b)(i), (i) with respect to if such Person is a fiscal quarter (or fiscal year in the case Domestic Subsidiary of the fourth fiscal quarter of Principal Borrower or a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any Preferred Stock Subsidiary, the Borrower shall cause such Subsidiary Person to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose, and (ii) each cause such Person to deliver to the Administrative Agent documents of the following types referred to in form clauses (iii) and substance (iv) of Section 4.01(a), all in form, content and scope reasonably satisfactory to the Administrative Agent: ; provided, that to the extent such Person holds (i) a counterpart whether upon delivery of the Guaranty items required above or such other document as at any time after the delivery of the items required above) assets with a fair market value in excess of $5,000,000 or to the extent requested by Administrative Agent, the Borrowers shall cause to be delivered to the Administrative Agent may deem appropriate for favorable opinions of counsel to such purpose executed by such Subsidiary and Person (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; providedwhich shall cover, howeveramong other things, the requirement for delivery legality, validity, binding effect and enforceability of a legal opinion the documentation referred to in Section 5.01(a)(v) this clause (a)). If a Non-Guarantor Subsidiary executes and delivers the Guaranty it shall only apply to no longer be deemed a Non-Guarantor Subsidiary to which $15,000,000 or more of Total Asset Value is attributableunder this Agreement.
(b) The Notwithstanding any other provisions of this Agreement to the contrary, to the extent a Guarantor anticipates becoming or intends to become a Non-Guarantor Subsidiary pursuant to any of clauses (b), (c) or (d) of the definition thereof, the Principal Borrower may notify request a release of such Guarantor as a Guarantor hereunder in accordance with the following:
(i) the Principal Borrower shall deliver to the Administrative Agent, not less than ten (10) days and not more than thirty (30) days prior to the anticipated or intended conversion of a Guarantor into a Non-Guarantor Subsidiary, a written request for release of the applicable Guarantor and a pro forma compliance certificate of the chief financial officer of the Principal Borrower in form and substance acceptable to the Administrative Agent, (A) demonstrating that upon such release the Loan Parties will on a pro forma basis continue to comply with (1) the financial covenants contained in Section 7.08 and (2) the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any Consolidated Party, in each case by a reasonably detailed calculation thereof (which calculation shall be in form reasonably satisfactory to the Administrative Agent and which shall include, among other things, an explanation of the methodology used in writing that such calculation and a Guarantor (other than breakdown of the Parent) is to be released from the Guaranty, and following receipt components of such notice the Administrative Agent shall release such Guarantor from the Guarantycalculation), so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) stating that the Loan Parties will be in compliance with each of the covenants set forth in Articles VI and VII of the Agreement at all times following such Guarantor is not otherwise required release, (C) stating that, following such release, no Default or Event of Default will exist under the Agreement or any of the other Loan Documents, or if any Default or Event of Default will exist, specifying the nature and extent thereof and what action the Loan Parties propose to be a party take with respect thereto, and (D) attaching, pursuant to Section 5.13 of the Agreement, an updated version of Schedule 5.13 to the Guaranty under the immediately preceding subsection (a); Agreement;
(ii) no Default shall then be in existence or would occur as a result of such release; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received reviewed and approved (in writing) the request for release and pro forma compliance certificate delivered pursuant to subclause (i) above; provided, that the failure of the Administrative Agent to respond to such written notice at least 10 Business Days a request within ten (or such shorter period as may be acceptable to 10) days of its receipt thereof shall constitute the Administrative Agent’s approval thereof; provided, that any approval of the Administrative Agent provided pursuant to this subclause (ii) shall lapse and be null and void thirty (30) days following the granting thereof if the applicable Guarantor has not, on or prior to the requested date completion of release. Delivery such period, met the criteria for qualification as a Non-Guarantor Subsidiary (as evidenced by the delivery by the Principal Borrower of a notice and certification in accordance with subclause (iii) below); and
(iii) the Principal Borrower shall, concurrently with or promptly following the applicable Guarantor’s satisfaction of the criteria for qualification as a Non-Guarantor Subsidiary deliver to the Administrative Agent a notice and certification of such qualification. Notwithstanding any language to the contrary above, so long as the chief financial officer of the Principal Borrower has certified in a compliance certificate (and the Administrative Agent has no evidence or information which brings into reasonable doubt the veracity of such certifications) that: (A) upon such release the Loan Parties (1) will on a pro forma basis continue to comply with the financial covenants contained in Section 7.08 hereof, and the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any such notice shall constitute a representation by Consolidated Party, and (2) will be in compliance with each of the Borrower that the matters covenants set forth in the preceding sentence (both as Articles VI and VII of the date Agreement at all times following such release, (B) following such release, no Default or Event of Default will exist under this Agreement or any of the giving other Loan Documents, or if any Default or Event of such request Default will exist, the nature and as extent thereof and what action the Loan Parties propose to take with respect thereto will be specified, and (C) attached pursuant to Section 5.13 of the date Agreement, is an updated version of Schedule 5.13 to the effectiveness of such request) are true Agreement, the request for release shall be approved and correct with respect to such request. Unless issued by the Administrative Agent notifies within the Borrower otherwise10-day time period specified in subsection (b)(ii). Upon satisfaction of each of the above-noted conditions, such a Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice obligations hereunder and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense under each of the Borrower) to evidence the release of a Guarantor from the GuarantyLoan Documents.
Appears in 2 contracts
Samples: Five Year Term Loan Agreement (Highwoods Realty LTD Partnership), Seven Year Term Loan Agreement (Highwoods Realty LTD Partnership)
Additional Guarantors; Release of Guarantors. In the event of any Bond Issuance occurring after the Closing Date or the issuance after the Closing Date of any guaranty or other credit support for any Bonds, in each case by any Wholly-Owned Subsidiary or any wholly-owned Subsidiary of the Parent Guarantor (a) No later other than the date Operating Partnership, an existing Guarantor, Borrower or an Immaterial Subsidiary) (any such Bond Issuances, guarantees and credit support being referred to as “Bond Debt”), such Subsidiary issuer or such guarantor or provider of credit support shall, at the Borrower is required to deliver a Compliance Certificate pursuant to Section 7.02(a) with respect to a fiscal quarter (or fiscal year in the case cost of the fourth fiscal quarter of a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any SubsidiaryLoan Parties, the Borrower shall cause such Subsidiary to become a Guarantor hereunder (in each case, an “Additional Guarantor”), in each case within 15 days after such Bond Issuance by executing and delivering to the Administrative Agent a counterpart Guaranty Supplement guaranteeing the Obligations of the Guaranty other Loan Parties under the Loan Documents; provided, however, that Wholly-Owned Foreign Subsidiaries that are not Immaterial Subsidiaries shall be permitted to incur and/or have outstanding (or i) Bond Debt in a principal amount not to exceed 10% of Total Asset Value, (ii) Debt under the Facility, and (iii) Secured Debt, in each case without being required to become a Guarantor pursuant to this Section 5.01(j). Each Additional Guarantor shall, within such other document as 15 day period, deliver to the Administrative Agent shall deem appropriate for such purpose(A) each all of the following documents set forth in Sections 3.01(a)(iii) and (iv) with respect to such Additional Guarantor, (B) all of the “know your client” information relating to such Additional Guarantor that is reasonably requested by the Administrative Agent or any Lender and (C) a corporate formalities legal opinion relating to such Additional Guarantor from counsel reasonably acceptable to the Administrative Agent, all in form and substance reasonably satisfactory to the Administrative Agent: (i) . If any Additional Guarantor is no longer a counterpart of the Guaranty guarantor or such other document as credit support provider with respect to any Bonds, then the Administrative Agent may deem appropriate for such purpose executed by such Subsidiary and (ii) shall, upon the items that would have been delivered under subsections (iii) through (v) request of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; providedOperating Partnership, however, the requirement for delivery of a legal opinion referred to in Section 5.01(a)(v) shall only apply to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributable.
(b) The Borrower may notify the Administrative Agent in writing that a Guarantor (other than the Parent) is to be released from the Guaranty, and following receipt of such notice the Administrative Agent shall release such Additional Guarantor from the Guaranty, so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a); (ii) provided that no Event of Default shall then have occurred and be in existence or would occur as a result of such release; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received such written notice 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 notice 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. Unless the Administrative Agent notifies the Borrower otherwise, such Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense of the Borrower) to evidence the release of a Guarantor from the Guarantycontinuing.
Appears in 2 contracts
Samples: Term Loan Agreement (Digital Realty Trust, L.P.), Term Loan Agreement (Digital Realty Trust, L.P.)
Additional Guarantors; Release of Guarantors. (a) No later If any Person (other than a Non-Guarantor Subsidiary) becomes a Subsidiary of any Loan Party or upon the date the Borrower is required to deliver formation of any Preferred Stock Subsidiary or if at any time any Non-Guarantor Subsidiary qualifying as such as a Compliance Certificate pursuant to Section 7.02(aresult of clauses (a), (b) with respect to a fiscal quarter or (or fiscal year in the case c) of the fourth fiscal quarter definition thereof could become a Loan Party without violating the terms of any material contract, agreement or document to which it is a party, the Principal Borrower shall (i) if such Person is a Domestic Subsidiary of a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any Loan Party or a Preferred Stock Subsidiary, the Borrower shall cause such Subsidiary to Person become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose, (ii) each provide the Administrative Agent with notice thereof on a quarterly basis by delivering a Quarterly Stock Repurchase/Joinder Statement and other documentation as required in Section 6.2(b)(iii), and (iii) cause such Person to deliver to the Administrative Agent documents of the following types referred to in form clauses (iii) and substance (iv) of Section 4.01(a), all in form, content and scope reasonably satisfactory to the Administrative Agent: ; provided, that to the extent such Person holds (i) a counterpart whether upon delivery of the Guaranty items required above or such other document as at any time after the delivery of the items required above) assets with a fair market value in excess of $5,000,000 or to the extent requested by Administrative Agent, the Borrowers shall cause to be delivered to the Administrative Agent may deem appropriate for favorable opinions of counsel to such purpose executed by such Subsidiary and Person (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; providedwhich shall cover, howeveramong other things, the requirement for delivery legality, validity, binding effect and enforceability of a legal opinion the documentation referred to in Section 5.01(a)(v) this clause (a)). If a Non-Guarantor Subsidiary executes and delivers the Guaranty it shall only apply to no longer be deemed a Non-Guarantor Subsidiary to which $15,000,000 or more of Total Asset Value is attributableunder this Credit Agreement.
(b) The Notwithstanding any other provisions of this Agreement to the contrary, to the extent a Guarantor anticipates becoming or intends to become a Non-Guarantor Subsidiary pursuant to any of clauses (b), (c) or (d) of the definition thereof, the Principal Borrower may notify request a release of such Guarantor as a Guarantor hereunder in accordance with the following:
(i) the Principal Borrower shall deliver to the Administrative Agent, not less than ten (10) days and not more than thirty (30) days prior to the anticipated or intended conversion of a Guarantor into a Non-Guarantor Subsidiary, a written request for release of the applicable Guarantor and a pro forma compliance certificate of the chief financial officer of the Principal Borrower in form and substance acceptable to the Administrative Agent, (A) demonstrating that upon such release the Loan Parties will on a pro forma basis continue to comply with (1) the financial covenants contained in Section 7.11 and (2) the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any Consolidated Party, in each case by a reasonably detailed calculation thereof (which calculation shall be in form reasonably satisfactory to the Administrative Agent and which shall include, among other things, an explanation of the methodology used in writing that such calculation and a Guarantor (other than breakdown of the Parent) is to be released from the Guaranty, and following receipt components of such notice the Administrative Agent shall release such Guarantor from the Guarantycalculation), so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) stating that the Loan Parties will be in compliance with each of the covenants set forth in Articles VI and VII of the Agreement at all times following such Guarantor is not otherwise required release, (C) stating that, following such release, no Default or Event of Default will exist under the Agreement or any of the other Loan Documents, or if any Default or Event of Default will exist, specifying the nature and extent thereof and what action the Loan Parties propose to be a party take with respect thereto, and (D) attaching, pursuant to Section 5.13 of the Agreement, an updated version of Schedule 5.13 to the Guaranty under the immediately preceding subsection (a); Agreement;
(ii) no Default shall then be in existence or would occur as a result of such release; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received reviewed and approved (in writing) the request for release and pro forma compliance certificate delivered pursuant to subclause (i) above; provided, that the failure of the Administrative Agent to respond to such written notice at least 10 Business Days a request within ten (or such shorter period as may be acceptable to 10) days of its receipt thereof shall constitute the Administrative Agent’s approval thereof; provided, that any approval of the Administrative Agent provided pursuant to this subclause (ii) shall lapse and be null and void thirty (30) days following the granting thereof if the applicable Guarantor has not, on or prior to the requested date completion of release. Delivery such period, met the criteria for qualification as a Non-Guarantor Subsidiary (as evidenced by the delivery by the Principal Borrower of a notice and certification in accordance with subclause (iii) below); and
(iii) the Principal Borrower shall, concurrently with or promptly following the applicable Guarantor’s satisfaction of the criteria for qualification as a Non-Guarantor Subsidiary deliver to the Administrative Agent a notice and certification of such qualification. Notwithstanding any language to the contrary above, so long as the chief financial officer of the Principal Borrower has certified in a compliance certificate (and the Administrative Agent has no evidence or information which brings into reasonable doubt the veracity of such certifications) that: (A) upon such release the Loan Parties (1) will on a pro forma basis continue to comply with the financial covenants contained in Section 7.11 hereof, and the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any such notice shall constitute a representation by Consolidated Party, and (2) will be in compliance with each of the Borrower that the matters covenants set forth in the preceding sentence (both as Articles VI and VII of the date Agreement at all times following such release, (B) following such release, no Default or Event of Default will exist under the Credit Agreement or any of the giving other Loan Documents, or if any Default or Event of such request Default will exist, the nature and as extent thereof and what action the Loan Parties propose to take with respect thereto will be specified, and (C) attached pursuant to Section 5.13 of the date Agreement, is an updated version of Schedule 5.13 to the effectiveness of such request) are true Agreement, the request for release shall be approved and correct with respect to such request. Unless issued by the Administrative Agent notifies within the Borrower otherwise10-day time period specified in subsection (b)(ii). Upon satisfaction of each of the above-noted conditions, such a Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice obligations hereunder and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense under each of the Borrower) to evidence the release of a Guarantor from the GuarantyLoan Documents.
Appears in 2 contracts
Samples: Credit Agreement (Highwoods Realty LTD Partnership), Credit Agreement (Highwoods Realty LTD Partnership)
Additional Guarantors; Release of Guarantors. (a) No later than the date the Borrower is required to deliver a Compliance Certificate pursuant to Section 7.02(a) 0 with respect to a fiscal quarter (or the fiscal year in the case of the fourth fiscal quarter of a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any Subsidiaryending December 31, 2018, the Borrower shall cause each Subsidiary (other than an Excluded Subsidiary or an Immaterial Subsidiary) listed on part (b) of Schedule 6.13, or any other Subsidiary formed after December 21, 2018 and prior to the date of such Subsidiary delivery to hold assets acquired on or after the Closing Date to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose) each of the following in form and substance satisfactory to the Administrative Agent: (i) a counterpart of the Guaranty or such other document as the Administrative Agent may deem appropriate for such purpose executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iii) through (v) and subsection (x) of Section 5.01(a0(a) if such Subsidiary had been a Subsidiary on the date of this AgreementAgreement Date; provided, however, the requirement for delivery of a legal opinion referred to in Section 5.01(a)(v) shall only apply to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributable.
(b) No later than the date the Borrower is required to deliver a Compliance Certificate pursuant to Section 0 with respect to a fiscal quarter (or fiscal year in the case of the fourth fiscal quarter of a fiscal year) during which (x) a Person became a Subsidiary (other than an Excluded Subsidiary or an Immaterial Subsidiary), (y) an Excluded Subsidiary ceased to be subject to the restriction which prevented it from becoming a Guarantor on the Closing Date or pursuant to this Section or (z) the value of the assets of an Immaterial Subsidiary precluded it from continuing to qualify as an Immaterial Subsidiary, the Borrower shall cause such Subsidiary to become a Guarantor by executing and delivering to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (i) a counterpart of the Guaranty or such other document as the Administrative Agent may deem appropriate for such purpose executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iii) through (v) and subsection (x) of Section 0(a) if such Subsidiary had been a Subsidiary on the Agreement Date; provided, however, the requirement for delivery of a legal opinion referred to in Section 0(a)(v) shall only apply to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributable.
(c) The Borrower may notify the Administrative Agent in writing that a Guarantor (other than the Parent) is to be released from the Guaranty, and following receipt of such notice the Administrative Agent shall release such Guarantor from the Guaranty, so long as: (i) either (A) simultaneously with upon its release from the Guaranty such Subsidiary will either become an Excluded Subsidiary or an Immaterial Subsidiary or shall cease to be a Subsidiary or (B) such Guarantor is not otherwise required to be of the Borrower, in each case, as a party to the Guaranty under the immediately preceding subsection (a)result of a transaction permitted hereunder; (ii) no Default shall then be in existence or would occur as a result of such release, including without limitation; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received such written notice 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 notice 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. Unless the Administrative Agent notifies the Borrower otherwise, such Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense of the Borrower) to evidence the release of a Guarantor from the Guaranty.
Appears in 1 contract
Additional Guarantors; Release of Guarantors. (a) No later than the date the Borrower is required to deliver a Compliance Certificate pursuant to Section 7.02(a) with respect to a fiscal quarter (or fiscal year in the case of the fourth fiscal quarter of a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any Subsidiary, the The Borrower shall notify the Administrative Agent at the time that any Subsidiary becomes an owner of Unencumbered Real Property and promptly thereafter (and in any event within 15 days), cause such Subsidiary (if not already a Guarantor) to (i) become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose, and (ii) each deliver to the Administrative Agent documents of the following types referred to in form clauses (iii) and substance (iv) of Section 4.01(a) and favorable opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clause (i)), all in form, content and scope reasonably satisfactory to the Administrative Agent: (i) a counterpart of . Until the Guaranty or such other document as and all items described in this Section 6.12 are delivered to the Administrative Agent may deem appropriate for such purpose executed Agent, the Unencumbered Real Property owned by such Subsidiary Person shall not be included for the purposes of calculating the financial covenants set forth in Sections 7.11(d) and (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; provided, however, the requirement for delivery of a legal opinion referred to in Section 5.01(a)(v) shall only apply to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributablee).
(b) The Provided that the Borrower may notify provides to the Administrative Agent in writing no less than ten Business Days advance written notice that a one of the following events will occur, and provided that the Borrower and applicable Guarantor complies with this Section, the Administrative Agent, for itself and on behalf of the Lenders, shall release any Guarantor (other than BRE Property Investors) from its obligations under such Guarantor’s Guaranty upon the Parentoccurrence of any of the following events: (i) is to be released from on the Guaranty, date that such Guarantor incurs a Lien upon the Real Property owned by such Guarantor in a transaction permitted under Section 7.01 hereof and following receipt as a consequence of such notice transaction, such Guarantor will no longer own any Unencumbered Real Property; or (ii) on the date that such Guarantor has Disposed of all of its Unencumbered Real Property in one or more transactions permitted under Sections 7.04 and 7.05 hereof; or (iii) on the date that such Guarantor enters into a merger permitted under Section 7.04(a) and, as a result thereof, such Guarantor is no longer a Subsidiary; provided that in the case of each of the foregoing clauses (i), (ii), or (iii), the Administrative Agent shall release such Guarantor from its obligations under such Guarantor’s Guaranty only if the Guaranty, so long asAdministrative Agent is satisfied that: (i) either (A) simultaneously with its release from the Guaranty no Default or Event of Default exists or will exist after such Subsidiary will cease to be a Subsidiary encumbrance, Disposition or merger; and (B) such Guarantor the Borrower is not otherwise required to be in compliance on a party to pro forma basis with the Guaranty under the immediately preceding subsection (a); (ii) no Default shall then be financial covenants set forth in existence or would occur as a result Section 7.11 hereof and has provided evidence of such release; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received such written notice at least 10 Business Days (or such shorter period as may be acceptable compliance to the Administrative Agent) prior to . Upon the requested date release of release. Delivery the Guaranty as provided in this Section, the Real Property owned by such Guarantor or former Guarantor shall not be included for the Borrower to purposes of calculating the Administrative Agent of any such notice shall constitute a representation by the Borrower that the matters financial covenants set forth in the preceding sentence Sections 7.11(d) and (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. Unless the Administrative Agent notifies the Borrower otherwise, such Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense of the Borrower) to evidence the release of a Guarantor from the Guarantye).
Appears in 1 contract
Additional Guarantors; Release of Guarantors. (a) No later If any Person (other than a Non-Guarantor Subsidiary) becomes a Subsidiary of any Loan Party or if at any time any Non-Guarantor Subsidiary qualifying as such as a result of clauses (a), (b) or (c) of the definition thereof could become a Loan Party without violating the terms of any material contract, agreement or document to which it is a party, the Borrower shall (i) if such Person is a Domestic Subsidiary of a Loan Party (or is a Non-Guarantor Subsidiary that could become a Loan Party without violating the terms of any material contract, agreement or document to which it is a party), cause such Person (or such Non-Guarantor Subsidiary) to promptly (and in any event within fifteen (15) days from the date the Borrower is required to deliver any such Person becomes a Compliance Certificate pursuant to Section 7.02(a) with respect to Subsidiary of a fiscal quarter (or fiscal year Loan Party or, in the case of the fourth fiscal quarter of a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any Non-Guarantor Subsidiary, within fifteen (15) days from the Borrower shall cause date any such Non-Guarantor Subsidiary so qualifies to become a Loan Party) become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose, (ii) each provide the Administrative Agent with notice thereof, and (iii) cause such Person to deliver to the Administrative Agent documents of the following types referred to in form clauses (iii) and substance (iv) of Section 4.01(a), all in form, content and scope reasonably satisfactory to the Administrative Agent: ; provided, that to the extent such Person holds (i) a counterpart whether upon delivery of the Guaranty items required above or such other document as at any time after the delivery of the items required above) assets with a fair market value in excess of $5,000,000, the Borrower shall (if requested by Administrative Agent) cause to be delivered to the Administrative Agent may deem appropriate for favorable opinions of counsel to such purpose executed by such Subsidiary and Person (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; providedwhich shall cover, howeveramong other things, the requirement for delivery legality, validity, binding effect and enforceability of a legal opinion the documentation referred to in Section 5.01(a)(v) this clause (a)). If a Non-Guarantor Subsidiary executes and delivers the Guaranty it shall only apply to no longer be deemed a Non-Guarantor Subsidiary to which $15,000,000 or more of Total Asset Value is attributableunder this Credit Agreement.
(b) The Notwithstanding any other provisions of this Agreement to the contrary, to the extent a Guarantor anticipates becoming or intends to become a Non-Guarantor Subsidiary, the Borrower may notify request a release of such Guarantor as a Guarantor hereunder in accordance with the following:
(i) the Borrower shall deliver to the Administrative Agent, not less than ten (10) days and not more than thirty (30) days prior to the anticipated or intended conversion of a Guarantor into a Non-Guarantor Subsidiary, a written request for release of the applicable Guarantor and a Pro Forma Compliance Certificate of the chief financial officer of the Borrower in form and substance acceptable to the Administrative Agent, (A) demonstrating that upon such release the Loan Parties will on a pro forma basis continue to comply with (1) the financial covenants contained in Section 7.11 and (2) the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any Consolidated Party, in each case by a reasonably detailed calculation thereof (which calculation shall be in form reasonably satisfactory to the Administrative Agent and which shall include, among other things, an explanation of the methodology used in writing that such calculation and a Guarantor (other than breakdown of the Parent) is to be released from the Guaranty, and following receipt components of such notice the Administrative Agent shall release such Guarantor from the Guarantycalculation), so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) stating that the Loan Parties will be in compliance with each of the covenants set forth in Articles VI and VII of the Agreement at all times following such Guarantor is not otherwise required release, (C) stating that, following such release, no Default or Event of Default will exist under the Agreement or any of the other Loan Documents, or if any Default or Event of Default will exist, specifying the nature and extent thereof and what action the Loan Parties propose to be a party take with respect thereto, and (D) attaching, pursuant to Section 5.13 of the Agreement, an updated version of Schedule 5.13 to the Guaranty under the immediately preceding subsection (a); Agreement;
(ii) no Default shall then be in existence or would occur as a result of such release; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received reviewed and approved (in writing) the request for release and Pro Forma Compliance Certificate delivered pursuant to subclause (i) above; provided, that the failure of the Administrative Agent to respond to such written notice at least 10 Business Days a request within ten (or such shorter period as may be acceptable to 10) days of its receipt thereof shall constitute the Administrative Agent’s approval thereof; provided, that any approval of the Administrative Agent provided pursuant to this subclause (ii) shall lapse and be null and void thirty (30) days following the granting thereof if the applicable Guarantor has not, on or prior to the requested date completion of release. Delivery such period, met the criteria for qualification as a Non-Guarantor Subsidiary (as evidenced by the delivery by the Borrower of a notice and certification in accordance with subclause (iii) below); and
(iii) the Borrower shall, concurrently with or promptly following the applicable Guarantor’s satisfaction of the criteria for qualification as a Non-Guarantor Subsidiary deliver to the Administrative Agent a notice and certification of such qualification. Notwithstanding any language to the contrary above, so long as the chief financial officer of the Borrower has certified in a compliance certificate (and the Administrative Agent has no evidence or information which brings into reasonable doubt the veracity of such certifications) that: (A) upon such release the Loan Parties (1) will on a pro forma basis continue to comply with the financial covenants contained in Section 7.11 hereof, and the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any such notice shall constitute a representation by Consolidated Party, and (2) will be in compliance with each of the Borrower that the matters covenants set forth in the preceding sentence (both as Articles VI and VII of the date Agreement at all times following such release, (B) following such release, no Default or Event of Default will exist under the Credit Agreement or any of the giving other Loan Documents, or if any Default or Event of such request Default will exist, the nature and as extent thereof and what action the Loan Parties propose to take with respect thereto will be specified, and (C) attached pursuant to Section 5.13 of the date Agreement, is an updated version of Schedule 5.13 to the effectiveness of such request) are true Agreement, the request for release shall be approved and correct with respect to such request. Unless issued by the Administrative Agent notifies within the Borrower otherwise10-day time period specified in subsection (b)(ii). Upon satisfaction of each of the above-noted conditions, such a Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice obligations hereunder and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense under each of the Borrower) to evidence the release of a Guarantor from the GuarantyLoan Documents.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Tanger Factory Outlet Centers Inc)
Additional Guarantors; Release of Guarantors. (a) No later than the date the Borrower is required to deliver a Compliance Certificate pursuant to Section 7.02(a) with respect to a fiscal quarter (or fiscal year in the case of the fourth fiscal quarter of a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any Subsidiary, the Borrower shall cause such Subsidiary to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose) each of the following in form and substance satisfactory to the Administrative Agent: (i) a counterpart of the Guaranty or such other document as the Administrative Agent may deem appropriate for such purpose executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this AgreementAgreement Date; provided, however, the requirement for delivery of a legal opinion referred to in Section 5.01(a)(v) shall only apply to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributable.
(b) The Borrower may notify the Administrative Agent in writing that a Guarantor (other than the Parent) is to be released from the Guaranty, and following receipt of such notice the Administrative Agent shall release such Guarantor from the Guaranty, so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a); (ii) no Default shall then be in existence or would occur as a result of such release, including without limitation; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received such written notice 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 notice 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. Unless the Administrative Agent notifies the Borrower otherwise, such Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense of the Borrower) to evidence the release of a Guarantor from the Guaranty.
(l) Section 8.02 of the Loan Agreement is amended and restated to read as follows:
Appears in 1 contract
Additional Guarantors; Release of Guarantors. (a) No later than In the date event that the Borrower shall request that certain Real Estate owned (or leased to a Subsidiary Guarantor as lessee under a Ground Lease) by a Wholly-Owned Subsidiary of the Borrower be included as a Borrowing Base Property as contemplated by §5.3 and such Real Estate is required included as a Borrowing Base Property in accordance with the terms hereof, the Borrower shall, as a condition to such Real Estate being included as a Borrowing Base Property, cause each such Wholly-Owned Subsidiary, and each Wholly-Owned Subsidiary which owns an interest therein, to execute and deliver to the Agent a Compliance Certificate pursuant Joinder Agreement, and each such Subsidiary shall become a Guarantor hereunder and thereunder. Each such Subsidiary shall be specifically authorized, in accordance with its respective organizational documents, to Section 7.02(a) be a Guarantor hereunder and thereunder and to execute the Contribution Agreement and such Security Documents as the Agent may require. The Borrower shall further cause all representations, covenants and agreements in the Loan Documents with respect to a fiscal quarter (the Guarantors to be true and correct or fiscal year in the case of the fourth fiscal quarter of a fiscal year) during which any Required Guarantee Condition is satisfied complied with, as applicable, with respect to any each such Subsidiary. In connection with the delivery of such Joinder Agreement, the Borrower shall cause such Subsidiary to become a Guarantor by executing and delivering deliver to the Administrative Agent a counterpart of the Guaranty (or such organizational agreements, resolutions, consents, opinions and other document documents and instruments as the Administrative Agent shall deem appropriate for such purpose) each of the following in form and substance satisfactory to the Administrative Agent: (i) a counterpart of the Guaranty or such other document as the Administrative Agent may deem appropriate for such purpose executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; provided, however, the requirement for delivery of a legal opinion referred to in Section 5.01(a)(v) shall only apply to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributablereasonably require.
(b) The Borrower may notify In the Administrative Agent event that all Borrowing Base Properties owned or leased by a Subsidiary Guarantor shall have been released as Collateral for the Obligations and Hedge Obligations in writing that a accordance with the terms of this Agreement, then such Subsidiary Guarantor (other than the Parent) is to shall be released by Agent from liability under this Agreement and the Guarantyother Loan Documents, and following receipt of such notice the Administrative Agent shall release such Guarantor from the Guaranty, so long as: (i) either (A) simultaneously with its release from the Guaranty provided that such Subsidiary will cease to be a Subsidiary or (B) such Guarantor is not otherwise required to be a party Guarantor, such release documents to be in form and substance reasonably satisfactory to the Guaranty under Agent.
(c) The provisions of §5.4 shall not entitle Borrower or the immediately preceding subsection (a); (ii) no Default shall then be in existence or would occur as a result of such release; (iii) the representations and warranties made or deemed made by the Borrower and each other Loan Party in REIT to any release from the Loan Documents to which any of them is a party, shall be true and correct 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received such written notice 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 notice 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. Unless the Administrative Agent notifies the Borrower otherwise, such Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense of the Borrower) to evidence the release of a Guarantor from the GuarantyDocuments.
Appears in 1 contract
Samples: Credit Agreement (Modiv Inc.)
Additional Guarantors; Release of Guarantors. In the event of any Bond Issuance occurring after the Closing Date or the issuance after the Closing Date of any guaranty or other credit support for any Bonds, in each case by any Wholly‑Owned Subsidiary or any wholly‑owned Subsidiary of the Parent Guarantor (a) No later other than the date Operating Partnership, an existing Guarantor or an Immaterial Subsidiary) (any such Bond Issuances, guaranties and credit support being referred to as “Bond Debt”), such Subsidiary issuer or such guarantor or provider of credit support shall, at the Borrower is required to deliver a Compliance Certificate pursuant to Section 7.02(a) with respect to a fiscal quarter (or fiscal year in the case cost of the fourth fiscal quarter of a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any SubsidiaryLoan Parties, the Borrower shall cause such Subsidiary to become a Guarantor hereunder (each, an “Additional Guarantor”) within 15 days after such Bond Issuance by executing and delivering to the Administrative Agent a counterpart Guaranty Supplement guaranteeing the Obligations of the Guaranty other Loan Parties under the Loan Documents; provided, however, that Wholly‑Owned Foreign Subsidiaries that are not Immaterial Subsidiaries shall be permitted to incur and/or have outstanding (or i) Bond Debt in a principal amount not to exceed 10% of Total Asset Value, (ii) Debt under the Facility, and (iii) Secured Debt, in each case without being required to become a Guarantor pursuant to this Section 5.01(j). Each Additional Guarantor shall, within such other document as 15 day period, deliver to the Administrative Agent shall deem appropriate for such purpose(A) each all of the following documents set forth in Sections 3.01(a)(iii), (iv), (v), (vi) and (vii) with respect to such Additional Guarantor, (B) all of the “know your client” information relating to such Additional Guarantor that is reasonably requested by the Administrative Agent or any Lender Party and (C) a corporate formalities legal opinion relating to such Additional Guarantor from counsel reasonably acceptable to the Administrative Agent, all in form and substance reasonably satisfactory to the Administrative Agent: (i) . If any Additional Guarantor is no longer a counterpart of the Guaranty guarantor or such other document as credit support provider with respect to any Bonds, then the Administrative Agent may deem appropriate for such purpose executed by such Subsidiary and (ii) shall, upon the items that would have been delivered under subsections (iii) through (v) request of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; providedOperating Partnership, however, the requirement for delivery of a legal opinion referred to in Section 5.01(a)(v) shall only apply to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributable.
(b) The Borrower may notify the Administrative Agent in writing that a Guarantor (other than the Parent) is to be released from the Guaranty, and following receipt of such notice the Administrative Agent shall release such Additional Guarantor from the Guaranty, so long as: (i) either (A) simultaneously with its provided that no Event of Default shall have occurred and be continuing. For the avoidance of doubt, the Borrowers shall cause the Guarantors hereunder to be the same as the “Guarantors” as defined in and under the Global Loan Documents at all times. The Administrative Agent shall, upon Digital Realty – Yen Credit Agreement the request of the Operating Partnership, release any Guarantor that is released from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a); (ii) no Default shall then be Global Loan Documents in existence or would occur accordance with their terms as a result of such release; “Guarantor” (iiias defined thereunder) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received such written notice 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 notice 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. Unless the Administrative Agent notifies the Borrower otherwise, such Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense of the Borrower) to evidence the release of a Guarantor from the Guaranty, provided that no Event of Default shall have occurred and be continuing.
Appears in 1 contract
Additional Guarantors; Release of Guarantors. (a) No later If (x) any Person (other than a Non-Guarantor Subsidiary) becomes a Material Subsidiary of the date Principal Borrower, (y) at any time any Non-Guarantor Subsidiary qualifying as such as a result of clauses (a), (b) or (c) of the definition thereof could become a Loan Party without violating the terms of any material contract, agreement or document to which it is a party, or (z) a Subsidiary of the Principal Borrower is required to deliver a Compliance Certificate pursuant to Section 7.02(a) with guarantees, or otherwise becomes obligated in respect to a fiscal quarter (or fiscal year of, any Unsecured Debt of the Consolidated Parties, the Principal Borrower shall, contemporaneously, in the case of clause (z), and within thirty (30) days after delivery of the fourth fiscal quarter Quarterly Subsidiary Joinder Statement pursuant to Section 6.02(b)(i) (or such longer period as may be agreed to by the Administrative Agent) in the case of clauses (x) and (y), (i) if such Person is a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any SubsidiaryDomestic Subsidiary of the Principal Borrower, the Borrower shall cause such Subsidiary Person to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose, and (ii) each cause such Person to deliver to the Administrative Agent documents of the following types referred to in form clauses (iii) and substance (iv) of Section 4.01(a), all in form, content and scope reasonably satisfactory to the Administrative Agent: ; provided that to the extent such Person holds (i) a counterpart whether upon delivery of the Guaranty items required above or such other document as at any time after the delivery of the items required above) assets with a fair market value in excess of $5,000,000 or to the extent requested by Administrative Agent, the Borrowers shall cause to be delivered to the Administrative Agent may deem appropriate for favorable opinions of counsel to such purpose executed by such Subsidiary and Person (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; providedwhich shall cover, howeveramong other things, the requirement for delivery legality, validity, binding effect and enforceability of a legal opinion the documentation referred to in Section 5.01(a)(v) this clause (a)). If a Non-Guarantor Subsidiary executes and delivers the Guaranty, it shall only apply to no longer be deemed a Non-Guarantor Subsidiary to which $15,000,000 or more of Total Asset Value is attributableunder this Agreement.
(b) The Notwithstanding any other provisions of this Agreement to the contrary, to the extent a Guarantor anticipates becoming or intends to become a Non-Guarantor Subsidiary pursuant to any of clauses (b), (c) or (d) of the definition thereof, the Principal Borrower may notify request a release of such Guarantor as a Guarantor hereunder in accordance with the following:
(i) the Principal Borrower shall deliver to the Administrative Agent, not less than ten (10) days and not more than thirty (30) days prior to the anticipated or intended conversion of a Guarantor into a Non-Guarantor Subsidiary, a written request for release of the applicable Guarantor and a pro forma compliance certificate of the chief financial officer of the Principal Borrower in form and substance acceptable to the Administrative Agent, (A) demonstrating that upon such release the Loan Parties will on a pro forma basis continue to comply with (1) the financial covenants contained in Section 7.08 and (2) the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any Consolidated Party, in each case by a reasonably detailed calculation thereof (which calculation shall be in form reasonably satisfactory to the Administrative Agent and which shall include, among other things, an explanation of the methodology used in writing that such calculation and a Guarantor (other than breakdown of the Parent) is to be released from the Guaranty, and following receipt components of such notice the Administrative Agent shall release such Guarantor from the Guarantycalculation), so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) stating that the Loan Parties will be in compliance with each of the covenants set forth in Articles VI and VII of the Agreement at all times following such Guarantor is not otherwise required release, (C) stating that, following such release, no Default or Event of Default will exist under the Agreement or any of the other Loan Documents, or if any Default or Event of Default will exist, specifying the nature and extent thereof and what action the Loan Parties propose to be a party take with respect thereto, and (D) attaching, pursuant to Section 5.13 of the Agreement, an updated version of Schedule 5.13 to the Guaranty under the immediately preceding subsection (a); Agreement;
(ii) no Default shall then be in existence or would occur as a result of such release; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received reviewed and approved (in writing) the request for release and pro forma compliance certificate delivered pursuant to subclause (i) above; provided that the failure of the Administrative Agent to respond to such written notice at least 10 Business Days a request within ten (or such shorter period as may be acceptable to 10) days of its receipt thereof shall constitute the Administrative Agent’s approval thereof; provided that any approval of the Administrative Agent provided pursuant to this subclause (ii) shall lapse and be null and void thirty (30) days following the granting thereof if the applicable Guarantor has not, on or prior to the requested date completion of release. Delivery such period, met the criteria for qualification as a Non-Guarantor Subsidiary (as evidenced by the delivery by the Principal Borrower of a notice and certification in accordance with subclause (iii) below); and
(iii) the Principal Borrower shall, concurrently with or promptly following the applicable Guarantor’s satisfaction of the criteria for qualification as a Non-Guarantor Subsidiary deliver to the Administrative Agent a notice and certification of such qualification. Notwithstanding any language to the contrary above, so long as the chief financial officer of the Principal Borrower has certified in a compliance certificate (and the Administrative Agent has no evidence or information which brings into reasonable doubt the veracity of such certifications) that: (A) upon such release the Loan Parties (1) will on a pro forma basis continue to comply with the financial covenants contained in Section 7.08 hereof, and the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any such notice shall constitute a representation by Consolidated Party, and (2) will be in compliance with each of the Borrower that the matters covenants set forth in the preceding sentence (both as Articles VI and VII of the date Agreement at all times following such release, (B) following such release, no Default or Event of Default will exist under this Agreement or any of the giving other Loan Documents, or if any Default or Event of such request Default will exist, the nature and as extent thereof and what action the Loan Parties propose to take with respect thereto will be specified, and (C) attached pursuant to Section 5.13 of the date Agreement, is an updated version of Schedule 5.13 to the effectiveness of such request) are true Agreement, the request for release shall be approved and correct with respect to such request. Unless issued by the Administrative Agent notifies within the Borrower otherwiseten (10)-day time period specified in subsection (b)(ii). Upon satisfaction of each of the above-noted conditions, such a Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice obligations hereunder and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense under each of the Borrower) to evidence the release of a Guarantor from the GuarantyLoan Documents.
Appears in 1 contract
Samples: Credit Agreement (Highwoods Realty LTD Partnership)
Additional Guarantors; Release of Guarantors. (a) No later than In the date event that the Borrower shall request that certain Real Estate of a Wholly-Owned Subsidiary of the Borrower be included as an Unencumbered Borrowing Base Property as contemplated by §5.3(a) and such Real Estate is required included as an Unencumbered Borrowing Base Property in accordance with the terms hereof, the Borrower shall, as a condition to such Real Estate being included as an Unencumbered Borrowing Base Property, cause each such Wholly-Owned Subsidiary (and each other Subsidiary of Borrower owning an interest therein), to execute and deliver to the Agent a Compliance Certificate pursuant Joinder Agreement, and such Subsidiary or Subsidiaries shall become a Guarantor hereunder and thereunder. Each such Subsidiary shall be specifically authorized, in accordance with its respective organizational documents, to Section 7.02(a) be a Guarantor hereunder and thereunder and to execute the Contribution Agreement and such other Loan Documents as the Agent may require. The Borrower shall further cause all representations, covenants and agreements in the Loan Documents with respect to a fiscal quarter (or fiscal year in the case of the fourth fiscal quarter of a fiscal year) during which any Required Guarantee Condition is satisfied Guarantors to be true and correct with respect to any each such Subsidiary. In connection with the delivery of such Joinder Agreement, the Borrower shall cause such Subsidiary to become a Guarantor by executing and delivering deliver to the Administrative Agent a counterpart of the Guaranty (or such organizational agreements, resolutions, consents, opinions and other document documents and instruments as the Administrative Agent shall deem appropriate for such purpose) each of the following in form and substance satisfactory to the Administrative Agent: (i) a counterpart of the Guaranty or such other document as the Administrative Agent may deem appropriate for such purpose executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; provided, however, the requirement for delivery of a legal opinion referred to in Section 5.01(a)(v) shall only apply to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributablereasonably require.
(b) The Borrower may notify the Administrative Agent request in writing that a Guarantor (other than the Parent) is to be released from the GuarantyAgent release, and following upon receipt of such notice request the Administrative Agent shall release such (subject to the terms hereof), a Subsidiary Guarantor from the Guaranty, Guaranty so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary no Default or (B) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a); (ii) no Event of Default shall then be in existence or would occur as a result of such release; release or the removal of Real Estate referred to in clause (iii) 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 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 below; (in which case such representations and warranties shall have been true and correct on and as of such earlier date); and (ivii) the Administrative Agent shall have received such written notice request at least 10 ten (10) Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release; and (iii) any Real Estate owned or leased by such Subsidiary Guarantor shall be removed from the Unencumbered Borrowing Base Properties in accordance with §7.19 effective as of the date of such release; and (iv) the Borrower shall deliver to Agent evidence reasonably satisfactory to Agent that (w) the Borrower has disposed of or simultaneously with such release will dispose of its entire interest in such Subsidiary Guarantor or that all of the assets of such Subsidiary Guarantor will be disposed of in compliance with the terms of this Agreement, and if such transaction involves the disposition by such Subsidiary Guarantor of all of its assets, the net cash proceeds, if any, from such disposition are being distributed to the Borrower in connection with such disposition, (x) such Subsidiary Guarantor will be the borrower with respect to Secured Indebtedness that is not prohibited under this Agreement and the terms of such Indebtedness prohibit such Subsidiary Guarantor from guaranteeing the Indebtedness of another Person, which Indebtedness of such Subsidiary Guarantor may be secured by a Lien on the assets of such Subsidiary Guarantor, or (y) the Borrower has contributed or simultaneously with such release will contribute its entire direct or indirect interest in such Subsidiary Guarantor to an Unconsolidated Affiliate or a Subsidiary which is not a Wholly-Owned Subsidiary or that such Subsidiary Guarantor will be contributing all of its assets to an Unconsolidated Affiliate or a Subsidiary which is not a Wholly-Owned Subsidiary in compliance with the terms of this Agreement. Delivery by the Borrower to the Administrative Agent of any such notice request for a release 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. Unless the Administrative Agent notifies the .
(c) The provisions of §5.4 shall not entitle Borrower otherwise, such Guarantor shall be deemed or REIT to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense of the Borrower) to evidence the any release of a Guarantor from the GuarantyLoan Documents.
Appears in 1 contract
Additional Guarantors; Release of Guarantors. (a) No later than Effective upon any Domestic Subsidiary which is not, as of the date the Borrower is required to deliver hereof, a Compliance Certificate pursuant to Section 7.02(a) with respect to Material Subsidiary becoming a fiscal quarter (or fiscal year in the case of the fourth fiscal quarter of a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any Material Subsidiary, the Borrower Company shall cause such Domestic Subsidiary to become a Guarantor by executing to, within ten (10) Business Days execute and delivering deliver to the Administrative Agent a counterpart for the benefit of the Guaranty (or such other document as Lenders a joinder to the Subsidiary Guaranty. The Company shall promptly notify the Administrative Agent shall deem appropriate for at any time at which any such purpose) each of the following in form and substance satisfactory to the Administrative Agent: (i) Domestic Subsidiary becomes a counterpart of the Guaranty or such other document as the Administrative Agent may deem appropriate for such purpose executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; provided, however, the requirement for delivery of a legal opinion referred to in Section 5.01(a)(v) shall only apply to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributableMaterial Subsidiary.
(b) The Borrower may notify If, as of the Administrative Agent in writing that a Guarantor (other than the Parent) is to be released from the Guaranty, and following receipt of such notice the Administrative Agent shall release such Guarantor from the Guaranty, so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a); (ii) no Default shall then be in existence or would occur as a result of such release; (iii) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to date on which any financial statements are delivered pursuant to Section 5.01(b), the aggregate assets of them is all Domestic Subsidiaries of the Company that are not Subsidiary Guarantors (any such Subsidiary, a party, shall be true “Non-Subject Subsidiary”) are determined to exceed ten percent (10%) of the consolidated total assets of the Company and correct on and its Subsidiaries as of the date of such release with financial statements, then the same force and effect as if made on and as Company shall cause one or more of such date except Non-Subject Subsidiaries to promptly execute a Subsidiary Guaranty so that either (i) the aggregate assets of all Non-Subject Subsidiaries do not exceed ten percent (10%) of the consolidated total assets of the Company and its Subsidiaries or (ii) all Domestic Subsidiaries have executed a Subsidiary Guaranty.
(c) If any Domestic Subsidiary acting as a Subsidiary Guarantor ceases to be a Material Subsidiary and/or is no longer required to act as a Subsidiary Guarantor pursuant to paragraph (b) above (as demonstrated in each case 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 on and as reasonable satisfaction of such earlier date); and (iv) the Administrative Agent shall have received such written notice at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to ), then such Subsidiary shall be released from the requested date of release. Delivery by Subsidiary Guarantee promptly following the Borrower to the Administrative Agent of any such notice shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as request 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. Unless the Administrative Agent notifies the Borrower otherwise, such Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense of the Borrower) to evidence the release of a Guarantor from the GuarantyCompany.
Appears in 1 contract
Additional Guarantors; Release of Guarantors. (a) No later If any Person (other than a Non-Guarantor Subsidiary) becomes a Subsidiary of the date Principal Borrower or upon the formation of any Preferred Stock Subsidiary or if at any time any Non-Guarantor Subsidiary qualifying as such as a result of clauses (a), (b) or (c) of the definition thereof could become a Loan Party without violating the terms of any material contract, agreement or document to which it is a party, the Principal Borrower is required to deliver a Compliance Certificate shall, within thirty (30) days after delivery of the Quarterly Subsidiary Joinder Statement pursuant to Section 7.02(a6.02(b)(i), (i) with respect to if such Person is a fiscal quarter (or fiscal year in the case Domestic Subsidiary of the fourth fiscal quarter of Principal Borrower or a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any Preferred Stock Subsidiary, the Borrower shall cause such Subsidiary Person to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose, and (ii) each cause such Person to deliver to the Administrative Agent documents of the following types referred to in form clauses (iii) and substance (iv) of Section 4.01(a), all in form, content and scope reasonably satisfactory to the Administrative Agent: ; provided, that to the extent such Person holds (i) a counterpart whether upon delivery of the Guaranty items required above or such other document as at any time after the delivery of the items required above) assets with a fair market value in excess of $5,000,000 or to the extent requested by the Administrative Agent, the Borrowers shall cause to be delivered to the Administrative Agent may deem appropriate for favorable opinions of counsel to such purpose executed by such Subsidiary and Person (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; providedwhich shall cover, howeveramong other things, the requirement for delivery legality, validity, binding effect and enforceability of a legal opinion the documentation referred to in Section 5.01(a)(v) this clause (a)). If a Non-Guarantor Subsidiary executes and delivers the Guaranty it shall only apply to no longer be deemed a Non-Guarantor Subsidiary to which $15,000,000 or more of Total Asset Value is attributableunder this Agreement.
(b) The Notwithstanding any other provisions of this Agreement to the contrary, to the extent a Guarantor anticipates becoming or intends to become a Non-Guarantor Subsidiary pursuant to any of clauses (b), (c) or (d) of the definition thereof, the Principal Borrower may notify request a release of such Guarantor as a Guarantor hereunder in accordance with the following:
(i) the Principal Borrower shall deliver to the Administrative Agent, not less than ten (10) days and not more than thirty (30) days prior to the anticipated or intended conversion of a Guarantor into a Non-Guarantor Subsidiary, a written request for release of the applicable Guarantor and a pro forma compliance certificate of the chief financial officer of the Principal Borrower in form and substance acceptable to the Administrative Agent, (A) demonstrating that upon such release the Loan Parties will on a pro forma basis continue to comply with (1) the financial covenants contained in Section 7.08 and (2) the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any Consolidated Party, in each case by a reasonably detailed calculation thereof (which calculation shall be in form reasonably satisfactory to the Administrative Agent and which shall include, among other things, an explanation of the methodology used in writing that such calculation and a Guarantor (other than breakdown of the Parent) is to be released from the Guaranty, and following receipt components of such notice the Administrative Agent shall release such Guarantor from the Guarantycalculation), so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) stating that the Loan Parties will be in compliance with each of the covenants set forth in Article VI and VII of the Agreement at all times following such Guarantor is not otherwise required release, (C) stating that, following such release, no Default or Event of Default will exist under the Agreement or any of the other Loan Documents, or if any Default or Event of Default will exist, specifying the nature and extent thereof and what action the Loan Parties propose to be a party take with respect thereto, and (D) attaching, pursuant to Section 5.13 of the Agreement, an updated version of Schedule 5.13 to the Guaranty under the immediately preceding subsection (a); Agreement;
(ii) no Default shall then be in existence or would occur as a result of such release; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received reviewed and approved (in writing) the request for release and pro forma compliance certificate delivered pursuant to subclause (i) above; provided, that the failure of the Administrative Agent to respond to such written notice at least 10 Business Days a request within ten (or such shorter period as may be acceptable to 10) days of its receipt thereof shall constitute the Administrative Agent’s approval thereof; provided, that any approval of the Administrative Agent provided pursuant to this subclause (ii) shall lapse and be null and void thirty (30) days following the granting thereof if the applicable Guarantor has not, on or prior to the requested date completion of release. Delivery such period, met the criteria for qualification as a Non-Guarantor Subsidiary (as evidenced by the delivery by the Principal Borrower of a notice and certification in accordance with subclause (iii) below); and
(iii) the Principal Borrower shall, concurrently with or promptly following the applicable Guarantor’s satisfaction of the criteria for qualification as a Non-Guarantor Subsidiary deliver to the Administrative Agent a notice and certification of such qualification. Notwithstanding any language to the contrary above, so long as the chief financial officer of the Principal Borrower has certified in a compliance certificate (and the Administrative Agent has no evidence or information which brings into reasonable doubt the veracity of such certifications) that: (A) upon such release the Loan Parties (1) will on a pro forma basis continue to comply with the financial covenants contained in Section 7.08 hereof, and the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any such notice shall constitute a representation by Consolidated Party, and (2) will be in compliance with each of the Borrower that the matters covenants set forth in the preceding sentence (both as Article VI and VII of the date Agreement at all times following such release, (B) following such release, no Default or Event of Default will exist under this Agreement or any of the giving other Loan Documents, or if any Default or Event of such request Default will exist, the nature and as extent thereof and what action the Loan Parties propose to take with respect thereto will be specified, and (C) attached pursuant to Section 5.13 of the date Agreement, is an updated version of Schedule 5.13 to the effectiveness of such request) are true Agreement, the request for release shall be approved and correct with respect to such request. Unless issued by the Administrative Agent notifies within the Borrower otherwise10‑day time period specified in subsection (b)(ii). Upon satisfaction of each of the above-noted conditions, such a Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice obligations hereunder and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense under each of the Borrower) to evidence the release of a Guarantor from the GuarantyLoan Documents.
Appears in 1 contract
Samples: Term Loan Agreement (Highwoods Realty LTD Partnership)
Additional Guarantors; Release of Guarantors. (a) No later If any Person (other than the date the Borrower is required to deliver a Compliance Certificate pursuant to Section 7.02(aNon-Guarantor Subsidiary) with respect to becomes a fiscal quarter (or fiscal year in the case Subsidiary of the fourth fiscal quarter Principal Borrower or upon the formation of any Preferred Stock Subsidiary or if at any time any Non-Guarantor Subsidiary qualifying as such as a fiscal yearresult of clauses (a), (b) during or (c) of the definition thereof could become a Loan Party without violating the terms of any material contract, agreement or document to which any Required Guarantee Condition it is satisfied with respect to any a party, the Principal Borrower shall (i) if such Person is a Domestic Subsidiary of the Principal Borrower or a Preferred Stock Subsidiary, the Borrower shall cause such Subsidiary Person to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose, (ii) each provide the Administrative Agent with notice thereof on a quarterly basis by delivering a Quarterly Stock Repurchase/Joinder Statement and other documentation as required in Section 6.12(b)(iii), and (iii) cause such Person to deliver to the Administrative Agent documents of the following types referred to in form clauses (iii) and substance (iv) of Section 4.01(a), all in form, content and scope reasonably satisfactory to the Administrative Agent: ; provided, that to the extent such Person holds (i) a counterpart whether upon delivery of the Guaranty items required above or such other document as at any time after the delivery of the items required above) assets with a fair market value in excess of $5,000,000 or to the extent requested by Administrative Agent, the Borrowers shall cause to be delivered to the Administrative Agent may deem appropriate for favorable opinions of counsel to such purpose executed by such Subsidiary and Person (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; providedwhich shall cover, howeveramong other things, the requirement for delivery legality, validity, binding effect and enforceability of a legal opinion the documentation referred to in Section 5.01(a)(v) this clause (a)). If a Non-Guarantor Subsidiary executes and delivers the Guaranty it shall only apply to no longer be deemed a Non-Guarantor Subsidiary to which $15,000,000 or more of Total Asset Value is attributableunder this Credit Agreement.
(b) The Notwithstanding any other provisions of this Agreement to the contrary, to the extent a Guarantor anticipates becoming or intends to become a Non-Guarantor Subsidiary pursuant to any of clauses (b), (c) or (d) of the definition thereof, the Principal Borrower may notify request a release of such Guarantor as a Guarantor hereunder in accordance with the following:
(i) the Principal Borrower shall deliver to the Administrative Agent, not less than ten (10) days and not more than thirty (30) days prior to the anticipated or intended conversion of a Guarantor into a Non-Guarantor Subsidiary, a written request for release of the applicable Guarantor and a pro forma compliance certificate of the chief financial officer of the Principal Borrower in form and substance acceptable to the Administrative Agent, (A) demonstrating that upon such release the Loan Parties will on a pro forma basis continue to comply with (1) the financial covenants contained in Section 7.08 and (2) the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any Consolidated Party, in each case by a reasonably detailed calculation thereof (which calculation shall be in form reasonably satisfactory to the Administrative Agent and which shall include, among other things, an explanation of the methodology used in writing that such calculation and a Guarantor (other than breakdown of the Parent) is to be released from the Guaranty, and following receipt components of such notice the Administrative Agent shall release such Guarantor from the Guarantycalculation), so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) stating that the Loan Parties will be in compliance with each of the covenants set forth in Articles VI and VII of the Agreement at all times following such Guarantor is not otherwise required release, (C) stating that, following such release, no Default or Event of Default will exist under the Agreement or any of the other Loan Documents, or if any Default or Event of Default will exist, specifying the nature and extent thereof and what action the Loan Parties propose to be a party take with respect thereto, and (D) attaching, pursuant to Section 5.13 of the Agreement, an updated version of Schedule 5.13 to the Guaranty under the immediately preceding subsection (a); Agreement;
(ii) no Default shall then be in existence or would occur as a result of such release; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received such written notice at least 10 Business Days reviewed and approved (or such shorter period as may be acceptable in writing) the request for release and pro forma compliance certificate delivered pursuant to subclause (i) above; provided, that the Administrative Agent) prior to the requested date failure of release. Delivery by the Borrower to the Administrative Agent of any such notice 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 respond to such request. Unless the Administrative Agent notifies the Borrower otherwise, such Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of a request within ten (10) Business Days following of its receipt thereof shall constitute the Administrative Agent’s receipt 's approval thereof; provided, that any approval of the Administrative Agent provided pursuant to this subclause (ii) shall lapse and be null and void thirty (30) days following the granting thereof if the applicable Guarantor has not, on or prior to the completion of such period, met the criteria for qualification as a Non-Guarantor Subsidiary (as evidenced by the delivery by the Principal Borrower of a notice and certification in accordance with subclause (iii) below); and
(iii) the date Principal Borrower shall, concurrently with or promptly following the applicable Guarantor's satisfaction of the criteria for qualification as a Non-Guarantor Subsidiary deliver to the Administrative Agent a notice and certification of such qualification. Notwithstanding any language to the contrary above, so long as the chief financial officer of the Principal Borrower has certified in a compliance certificate (and the Administrative Agent has no evidence or information which brings into reasonable doubt the veracity of such certifications) that: (A) upon such release the Loan Parties (1) will on a pro forma basis continue to comply with the financial covenants contained in Section 7.08 hereof, and the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any Consolidated Party, and (2) will be in compliance with each of the covenants set forth in Articles VI and VII of the Agreement at all times following such notice as release, (B) following such release, no Default or Event of Default will exist under the requested date Credit Agreement or any of release. Upon the Borrower’s written requestother Loan Documents, or if any Default or Event of Default will exist, the nature and extent thereof and what action the Loan Parties propose to take with respect thereto will be specified, and (C) attached pursuant to Section 5.13 of the Agreement, is an updated version of Schedule 5.13 to the Agreement, the request for release shall be approved and issued by the Administrative Agent shall execute such documents as within the Borrower may reasonably request 10-day time period specified in subsection (and at the expense b)(ii). Upon satisfaction of each of the Borrower) to evidence the release of above-noted conditions, a Guarantor shall be deemed released from its obligations hereunder and under each of the GuarantyLoan Documents.
Appears in 1 contract
Samples: Term Loan Agreement (Highwoods Realty LTD Partnership)
Additional Guarantors; Release of Guarantors. (a) No later If any Person (other than a Non-Guarantor Subsidiary) becomes a Subsidiary of any Loan Party or upon the date the Borrower is required to deliver formation of any Preferred Stock Subsidiary or if at any time any Non-Guarantor Subsidiary qualifying as such as a Compliance Certificate pursuant to Section 7.02(aresult of clauses (a), (b) with respect to a fiscal quarter or (or fiscal year in the case c) of the fourth fiscal quarter definition thereof could become a Loan Party without violating the terms of any material contract, agreement or document to which it is a party, the Principal Borrower shall (i) if such Person is a Domestic Subsidiary of a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any Loan Party or a Preferred Stock Subsidiary, the Borrower shall cause such Subsidiary Person to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose, (ii) each provide the Administrative Agent with notice thereof on a quarterly basis by delivering a Quarterly Stock Repurchase/Joinder Statement and other documentation as required in Section 6.2(b)(iii), and (iii) cause such Person to deliver to the Administrative Agent documents of the following types referred to in form clauses (iii) and substance (iv) of Section 4.01(a), all in form, content and scope reasonably satisfactory to the Administrative Agent: ; provided, that to the extent such Person holds (i) a counterpart whether upon delivery of the Guaranty items required above or such other document as at any time after the delivery of the items required above) assets with a fair market value in excess of $5,000,000 or to the extent requested by Administrative Agent, the Borrowers shall cause to be delivered to the Administrative Agent may deem appropriate for favorable opinions of counsel to such purpose executed by such Subsidiary and Person (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; providedwhich shall cover, howeveramong other things, the requirement for delivery legality, validity, binding effect and enforceability of a legal opinion the documentation referred to in Section 5.01(a)(v) this clause (a)). If a Non-Guarantor Subsidiary executes and delivers the Guaranty it shall only apply to no longer be deemed a Non-Guarantor Subsidiary to which $15,000,000 or more under this Credit Agreement. -Table of Total Asset Value is attributable.Contents-
(b) The Notwithstanding any other provisions of this Agreement to the contrary, to the extent a Guarantor anticipates becoming or intends to become a Non-Guarantor Subsidiary pursuant to any of clauses (b), (c) or (d) of the definition thereof, the Principal Borrower may notify request a release of such Guarantor as a Guarantor hereunder in accordance with the following:
(i) the Principal Borrower shall deliver to the Administrative Agent, not less than ten (10) days and not more than thirty (30) days prior to the anticipated or intended conversion of a Guarantor into a Non-Guarantor Subsidiary, a written request for release of the applicable Guarantor and a pro forma compliance certificate of the chief financial officer of the Principal Borrower in form and substance acceptable to the Administrative Agent, (A) demonstrating that upon such release the Loan Parties will on a pro forma basis continue to comply with (1) the financial covenants contained in Section 7.11 and (2) the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any Consolidated Party, in each case by a reasonably detailed calculation thereof (which calculation shall be in form reasonably satisfactory to the Administrative Agent and which shall include, among other things, an explanation of the methodology used in writing that such calculation and a Guarantor (other than breakdown of the Parent) is to be released from the Guaranty, and following receipt components of such notice the Administrative Agent shall release such Guarantor from the Guarantycalculation), so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) stating that the Loan Parties will be in compliance with each of the covenants set forth in Articles VI and VII of the Agreement at all times following such Guarantor is not otherwise required release, (C) stating that, following such release, no Default or Event of Default will exist under the Agreement or any of the other Loan Documents, or if any Default or Event of Default will exist, specifying the nature and extent thereof and what action the Loan Parties propose to be a party take with respect thereto, and (D) attaching, pursuant to Section 5.13 of the Agreement, an updated version of Schedule 5.13 to the Guaranty under the immediately preceding subsection (a); Agreement;
(ii) no Default shall then be in existence or would occur as a result of such release; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received reviewed and approved (in writing) the request for release and pro forma compliance certificate delivered pursuant to subclause (i) above; provided, that the failure of the Administrative Agent to respond to such written notice at least 10 Business Days a request within ten (or such shorter period as may be acceptable to 10) days of its receipt thereof shall constitute the Administrative Agent’s approval thereof; provided, that any approval of the Administrative Agent provided pursuant to this subclause (ii) shall lapse and be null and void thirty (30) days following the granting thereof if the applicable Guarantor has not, on or prior to the requested date completion of release. Delivery such period, met the criteria for qualification as a Non-Guarantor Subsidiary (as evidenced by the delivery by the Principal Borrower of a notice and certification in accordance with subclause (iii) below); and
(iii) the Principal Borrower shall, concurrently with or promptly following the applicable Guarantor’s satisfaction of the criteria for qualification as a Non-Guarantor Subsidiary deliver to the Administrative Agent a notice and certification of such qualification. Notwithstanding any language to the contrary above, so long as the chief financial officer of the Principal Borrower has certified in a compliance certificate (and the Administrative Agent has no evidence or information which brings into reasonable doubt the veracity of such certifications) that: (A) upon such release the Loan Parties (1) will on a pro forma basis continue to comply with the financial covenants contained in Section 7.11 hereof, and the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any such notice shall constitute a representation by Consolidated Party, and (2) will be in compliance with each of the Borrower that the matters covenants set forth in the preceding sentence (both as Articles VI and VII of the date Agreement at all times following such release, (B) following such release, no Default or Event of Default will exist under the Credit Agreement or any of the giving other Loan Documents, or if any Default or Event of such request Default will exist, the nature and as extent thereof and what action the Loan Parties propose to take with respect thereto will be specified, and (C) attached pursuant to Section 5.13 of the date Agreement, is an updated version of Schedule 5.13 to the effectiveness of such request) are true Agreement, the request for release shall be approved and correct with respect to such request. Unless issued by the Administrative Agent notifies within the Borrower otherwise10-day time period specified in subsection (b)(ii). Upon satisfaction of each of the above-noted conditions, such a Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice obligations hereunder and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense under each of the Borrower) to evidence the release of a Guarantor from the GuarantyLoan Documents.
Appears in 1 contract
Samples: Credit Agreement (Highwoods Realty LTD Partnership)
Additional Guarantors; Release of Guarantors. (a) No later If any Person (other than the date the Borrower is required to deliver a Compliance Certificate pursuant to Section 7.02(aNon-Guarantor Subsidiary) with respect to becomes a fiscal quarter (or fiscal year in the case Subsidiary of the fourth fiscal quarter Principal Borrower or upon the formation of any Preferred Stock Subsidiary or if at any time any Non-Guarantor Subsidiary qualifying as such as a fiscal yearresult of clauses (a), (b) during or (c) of the definition thereof could become a Loan Party without violating the terms of any material contract, agreement or document to which any Required Guarantee Condition it is satisfied with respect to any a party, the Principal Borrower shall (i) if such Person is a Domestic Subsidiary of the Principal Borrower or a Preferred Stock Subsidiary, the Borrower shall cause such Subsidiary Person to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose, (ii) each provide the Administrative Agent with notice thereof on a quarterly basis by delivering a Quarterly Stock Repurchase/Joinder Statement and other documentation as required in Section 6.2(b)(iii), and (iii) cause such Person to deliver to the Administrative Agent documents of the following types referred to in form clauses (iii) and substance (iv) of Section 4.01(a), all in form, content and scope reasonably satisfactory to the Administrative Agent: ; provided, that to the extent such Person holds (i) a counterpart whether upon delivery of the Guaranty items required above or such other document as at any time after the delivery of the items required above) assets with a fair market value in excess of $5,000,000 or to the extent requested by Administrative Agent, the Borrowers shall cause to be delivered to the Administrative Agent may deem appropriate for favorable opinions of counsel to such purpose executed by such Subsidiary and Person (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; providedwhich shall cover, howeveramong other things, the requirement for delivery legality, validity, binding effect and enforceability of a legal opinion the documentation referred to in Section 5.01(a)(v) this clause (a)). If a Non-Guarantor Subsidiary executes and delivers the Guaranty it shall only apply to no longer be deemed a Non-Guarantor Subsidiary to which $15,000,000 or more of Total Asset Value is attributableunder this Credit Agreement.
(b) The Notwithstanding any other provisions of this Agreement to the contrary, to the extent a Guarantor anticipates becoming or intends to become a Non-Guarantor Subsidiary pursuant to any of clauses (b), (c) or (d) of the definition thereof, the Principal Borrower may notify request a release of such Guarantor as a Guarantor hereunder in accordance with the following:
(i) the Principal Borrower shall deliver to the Administrative Agent, not less than ten (10) days and not more than thirty (30) days prior to the anticipated or intended conversion of a Guarantor into a Non-Guarantor Subsidiary, a written request for release of the applicable Guarantor and a pro forma compliance certificate of the chief financial officer of the Principal Borrower in form and substance acceptable to the Administrative Agent, (A) demonstrating that upon such release the Loan Parties will on a pro forma basis continue to comply with (1) the financial covenants contained in Section 7.11 and (2) the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any Consolidated Party, in each case by a reasonably detailed calculation thereof (which calculation shall be in form reasonably satisfactory to the Administrative Agent and which shall include, among other things, an explanation of the methodology used in writing that such calculation and a Guarantor (other than breakdown of the Parent) is to be released from the Guaranty, and following receipt components of such notice the Administrative Agent shall release such Guarantor from the Guarantycalculation), so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) stating that the Loan Parties will be in compliance with each of the covenants set forth in Articles VI and VII of the Agreement at all times following such Guarantor is not otherwise required release, (C) stating that, following such release, no Default or Event of Default will exist under the Agreement or any of the other Loan Documents, or if any Default or Event of Default will exist, specifying the nature and extent thereof and what action the Loan Parties propose to be a party take with respect thereto, and (D) attaching, pursuant to Section 5.13 of the Agreement, an updated version of Schedule 5.13 to the Guaranty under the immediately preceding subsection (a); Agreement;
(ii) no Default shall then be in existence or would occur as a result of such release; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received reviewed and approved (in writing) the request for release and pro forma compliance certificate delivered pursuant to subclause (i) above; provided, that the failure of the Administrative Agent to respond to such written notice at least 10 Business Days a request within ten (or such shorter period as may be acceptable to 10) days of its receipt thereof shall constitute the Administrative Agent’s approval thereof; provided, that any approval of the Administrative Agent provided pursuant to this subclause (ii) shall lapse and be null and void thirty (30) days following the granting thereof if the applicable Guarantor has not, on or prior to the requested date completion of release. Delivery such period, met the criteria for qualification as a Non-Guarantor Subsidiary (as evidenced by the delivery by the Principal Borrower of a notice and certification in accordance with subclause (iii) below); and
(iii) the Principal Borrower shall, concurrently with or promptly following the applicable Guarantor’s satisfaction of the criteria for qualification as a Non-Guarantor Subsidiary deliver to the Administrative Agent a notice and certification of such qualification. Notwithstanding any language to the contrary above, so long as the chief financial officer of the Principal Borrower has certified in a compliance certificate (and the Administrative Agent has no evidence or information which brings into reasonable doubt the veracity of such certifications) that: (A) upon such release the Loan Parties (1) will on a pro forma basis continue to comply with the financial covenants contained in Section 7.11 hereof, and the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any such notice shall constitute a representation by Consolidated Party, and (2) will be in compliance with each of the Borrower that the matters covenants set forth in the preceding sentence (both as Articles VI and VII of the date Agreement at all times following such release, (B) following such release, no Default or Event of Default will exist under the Credit Agreement or any of the giving other Loan Documents, or if any Default or Event of such request Default will exist, the nature and as extent thereof and what action the Loan Parties propose to take with respect thereto will be specified, and (C) attached pursuant to Section 5.13 of the date Agreement, is an updated version of Schedule 5.13 to the effectiveness of such request) are true Agreement, the request for release shall be approved and correct with respect to such request. Unless issued by the Administrative Agent notifies within the Borrower otherwise10-day time period specified in subsection (b)(ii). Upon satisfaction of each of the above-noted conditions, such a Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice obligations hereunder and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense under each of the Borrower) to evidence the release of a Guarantor from the GuarantyLoan Documents.
Appears in 1 contract
Samples: Credit Agreement (Highwoods Realty LTD Partnership)
Additional Guarantors; Release of Guarantors. (a) No later than the date the Borrower is required to deliver a Compliance Certificate pursuant to Section 7.02(a) with respect to a fiscal quarter (or fiscal year in the case of the fourth fiscal quarter of a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any Subsidiary, the The Borrower shall notify the Administrative Agent at the time that any Subsidiary becomes an owner of Unencumbered Real Property and promptly thereafter (and in any event within 15 days), cause such Subsidiary (if not already a Guarantor) to (i) become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose, and (ii) each deliver to the Administrative Agent documents of the following types referred to in form clauses (iii) and substance (iv) of Section 4.01(a) and favorable opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clause (i)), all in form, content and scope reasonably satisfactory to the Administrative Agent: (i) a counterpart of . Until the Guaranty or such other document as and all items described in this Section 6.12 are delivered to the Administrative Agent may deem appropriate for such purpose executed Agent, the Unencumbered Real Property owned by such Subsidiary and (ii) Person shall not be included for the items that would have been delivered under subsections (iii) through (v) purposes of Section 5.01(a) if such Subsidiary had been a Subsidiary on calculating the date of this Agreement; provided, however, the requirement for delivery of a legal opinion referred to financial covenant set forth in Section 5.01(a)(v) shall only apply to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributable7.11(c).
(b) The Provided that the Borrower may notify provides to the Administrative Agent in writing no less than ten Business Days advance written notice that a one of the following events will occur, and provided that the Borrower and applicable Guarantor complies with this Section, the Administrative Agent, for itself and on behalf of the Lenders, shall release any Guarantor (other than BRE Property Investors) from its obligations under such Guarantor’s Guaranty upon the Parentoccurrence of any of the following events: (i) is to be released from on the Guaranty, date that such Guarantor incurs a Lien upon the Real Property owned by such Guarantor in a transaction permitted under Section 7.01 hereof and following receipt as a consequence of such notice transaction, such Guarantor will no longer own any Unencumbered Real Property; or (ii) on the date that such Guarantor has Disposed of all of its Unencumbered Real Property in one or more transactions permitted under Sections 7.04 and 7.05 hereof; or (iii) on the date that such Guarantor enters into a merger permitted under Section 7.04(a) and, as a result thereof, such Guarantor is no longer a Subsidiary; provided that in the case of each of the foregoing clauses (i), (ii), or (iii), the Administrative Agent shall release such Guarantor from its obligations under such Guarantor’s Guaranty only if the Guaranty, so long asAdministrative Agent is satisfied that: (i) either (A) simultaneously with its release from the Guaranty no Default or Event of Default exists or will exist after such Subsidiary will cease to be a Subsidiary encumbrance, Disposition or merger; and (B) such Guarantor the Borrower is not otherwise required to be in compliance on a party to pro forma basis with the Guaranty under the immediately preceding subsection (a); (ii) no Default shall then be financial covenants set forth in existence or would occur as a result Section 7.11 hereof and has provided evidence of such release; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received such written notice at least 10 Business Days (or such shorter period as may be acceptable compliance to the Administrative Agent) prior to . Upon the requested date release of release. Delivery the Guaranty as provided in this Section, the Real Property owned by such Guarantor or former Guarantor shall not be included for the Borrower to purposes of calculating the Administrative Agent of any such notice shall constitute a representation by the Borrower that the matters financial covenant 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. Unless the Administrative Agent notifies the Borrower otherwise, such Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense of the Borrower) to evidence the release of a Guarantor from the GuarantySection 7.11(c).
Appears in 1 contract
Additional Guarantors; Release of Guarantors.
(a) No later than the date the Borrower is required to deliver a Compliance Certificate pursuant to Section 7.02(a) with respect to a fiscal quarter (or fiscal year in the case of the fourth fiscal quarter of a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any Subsidiary, the Borrower shall cause such Subsidiary to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose) each of the following in form and substance satisfactory to the Administrative Agent: (i) a counterpart of the Guaranty or such other document as the Administrative Agent may deem appropriate for such purpose executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; provided, however, the requirement for delivery of a legal opinion referred to in Section 5.01(a)(v) shall only apply to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributable..
(b) The Borrower may notify the Administrative Agent in writing that a Guarantor (other than the Parent) is to be released from the Guaranty, and following receipt of such notice the Administrative Agent shall release such Guarantor from the Guaranty, so long as: (i) either either
(A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or or
(B) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a); (ii) no Default shall then be in existence or would occur as a result of such release; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received such written notice 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 notice 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. Unless the Administrative Agent notifies the Borrower otherwise, such Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense of the Borrower) to evidence the release of a Guarantor from the Guaranty.and
Appears in 1 contract
Additional Guarantors; Release of Guarantors. (a) No later than the date the Borrower is required to deliver a Compliance Certificate pursuant to Section 7.02(a) with respect to a fiscal quarter (or fiscal year in the case of the fourth fiscal quarter of a fiscal year) during which any Required Guarantee Condition is satisfied with respect (x) a Person became a Subsidiary (other than an Excluded Subsidiary or an Immaterial Subsidiary), (y) an Excluded Subsidiary ceased to any be subject to the restriction which prevented it from becoming a Guarantor on the Closing Date or pursuant to this Section or (z) the value of the assets of an Immaterial Subsidiary precluded it from continuing to qualify as an Immaterial Subsidiary, the Borrower shall cause such Subsidiary to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose) each of the following in form and substance satisfactory to the Administrative Agent: (i) a counterpart of the Guaranty or such other document as the Administrative Agent may deem appropriate for such purpose executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this AgreementAgreement Date; provided, however, the requirement for delivery of a legal opinion referred to in Section 5.01(a)(v) shall only apply to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributable.
(b) The Borrower may notify the Administrative Agent in writing that a Guarantor (other than the Parent) is to be released from the Guaranty, and following receipt of such notice the Administrative Agent shall release such Guarantor from the Guaranty, so long as: (i) either (A) simultaneously with upon its release from the Guaranty such Subsidiary will either become an Excluded Subsidiary or an Immaterial Subsidiary or shall cease to be a Subsidiary or (B) such Guarantor is not otherwise required to be of the Borrower, in each case, as a party to the Guaranty under the immediately preceding subsection (a)result of a transaction permitted hereunder; (ii) no Default shall then be in existence or would occur as a result of such release, including without limitation; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received such written notice 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 notice 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. Unless the Administrative Agent notifies the Borrower otherwise, such Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense of the Borrower) to evidence the release of a Guarantor from the Guaranty.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Agree Realty Corp)
Additional Guarantors; Release of Guarantors. (a) No later than the date the Borrower is required to deliver a Compliance Certificate pursuant to Section 7.02(a) with respect to a fiscal quarter (or fiscal year in the case of the fourth fiscal quarter of a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any Subsidiary, the Borrower shall cause such Subsidiary to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose) each of the following in form and substance satisfactory to the Administrative Agent: (i) a counterpart of the Guaranty or such other document as the Administrative Agent may deem appropriate for such purpose executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this AgreementAgreement Date; provided, however, the requirement for delivery of a legal opinion referred to in Section 5.01(a)(v) shall only apply to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributable.
(b) The Borrower may notify the Administrative Agent in writing that a Guarantor (other than the Parent) is to be released from the Guaranty, and following receipt of such notice the Administrative Agent shall release such Guarantor from the Guaranty, so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a); (ii) no Default shall then be in existence or would occur as a result of such release, including without limitation; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received such written notice 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 notice 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. Unless the Administrative Agent notifies the Borrower otherwise, such Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense of the Borrower) to evidence the release of a Guarantor from the Guaranty.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Agree Realty Corp)
Additional Guarantors; Release of Guarantors. (a) No later than In the date event that the Borrower shall request that certain Real Estate of a Wholly-Owned Subsidiary of the Borrower be included as a Credit Support Property as contemplated by §5.3(a) and such Real Estate is required included as a Credit Support Property in accordance with the terms hereof, the Borrower shall, as a condition to such Real Estate being included as a Credit Support Property, cause each such Wholly-Owned Subsidiary, to execute and deliver to the Agent a Compliance Certificate pursuant to Section 7.02(a) with respect to Joinder Agreement, and such Subsidiary shall become a fiscal quarter (or fiscal year Guarantor hereunder and thereunder. In addition, in the case event any Subsidiary of the fourth fiscal quarter of Borrower shall constitute a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any Material Subsidiary, the Borrower shall promptly cause such Subsidiary to execute and deliver to Agent a Joinder Agreement, and such Subsidiary shall become a Guarantor by executing hereunder and delivering thereunder. Each such Subsidiary shall be specifically authorized, in accordance with its respective organizational documents, to be a Guarantor hereunder and thereunder and to execute the Contribution Agreement and such Security Documents as the Agent may reasonably require. The Borrower shall further cause all representations, covenants and agreements in the Loan Documents with respect to the Administrative Guarantors to be true and correct with respect to each such Subsidiary. In connection with the delivery of such Joinder Agreement, the Borrower shall, or shall cause such Guarantor to, deliver to the Agent all documents required to be delivered pursuant to §10 with respect to a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose) Guarantor, each of the following which shall be in form and substance reasonably satisfactory to the Administrative Agent: (i) a counterpart of the Guaranty or such other document as the Administrative Agent may deem appropriate for such purpose executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; provided, however, the requirement for delivery of a legal opinion referred to in Section 5.01(a)(v) shall only apply to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributable.
(b) The Borrower may notify In the Administrative Agent event that all Credit Support Properties owned by a Subsidiary Guarantor shall have been released as Collateral for the Obligations and Hedge Obligations in writing that a accordance with the terms of this Agreement, then such Subsidiary Guarantor (other than the Parent) is to shall be released by Agent from the Guarantyliability under this Agreement, and following receipt of such notice the Administrative Agent shall release such Guarantor from the Guaranty, so long as: (i) either (A) simultaneously with its release from the Guaranty provided that such Subsidiary will cease to be a Subsidiary or (B) such Guarantor is not otherwise required to be a party Guarantor.
(c) The Borrower may request in writing that the Agent release, and upon receipt of such request the Agent shall release (subject to the terms hereof), a Subsidiary Guarantor that is a Guarantor solely by virtue of being a Material Subsidiary pursuant to clauses (b) and (c) of the definition hereof from the Guaranty under the immediately preceding subsection so long as: (a); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release; (iiiii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received such written notice request at least 10 ten (10) Business Days (or such shorter period as Agent may be acceptable to the Administrative Agentapprove) prior to the requested date of release; (iii) such Subsidiary Guarantor is not the owner of a Credit Support Property; and (iv) the Borrower shall deliver to Agent evidence reasonably satisfactory to Agent that (A) the Borrower has disposed of or simultaneously with such release will dispose of its entire interest in such Guarantor or that all of the assets of such Guarantor will be disposed of in compliance with the terms of this Agreement, and if such transaction involves the disposition by such Guarantor of all of its assets, the net cash proceeds, if any, from such disposition are being distributed to the Borrower in connection with such disposition, or (B) such Guarantor will be the borrower with respect to Secured Indebtedness that is not prohibited under this Agreement, which Indebtedness will be secured by a Lien on the assets of such Guarantor, and the provisions of such Secured Indebtedness make such Subsidiary Guarantor an Excluded Subsidiary, or (C) the Borrower has contributed or simultaneously with such release will contribute its entire direct or indirect interest in such Guarantor to an Unconsolidated Affiliate in compliance with the terms of this Agreement, or (D) if Borrower has obtained and is maintaining an Investment Grade Rating, such Subsidiary Guarantor is not required to be Guarantor pursuant to clause (b) of the definition of “Material Subsidiary”, or (E) such Guarantor is an Excluded Subsidiary. Delivery by the Borrower to the Administrative Agent of any such notice request for a release 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. Unless .
(d) Notwithstanding the Administrative terms of §5.5(a), (b) and (c), from and after any date that Agent notifies first receives written notice from Borrower that Borrower has first obtained an Investment Grade Rating, then (i) subject to the Borrower otherwiseterms of this §5.5(d), such Guarantor all Material Subsidiaries of the type described in clause (c) of the definition thereof shall no longer be deemed required to have been released from its Guaranty upon be Guarantors under the later to occur of ten Credit Agreement, and (10ii) Business Days following the Administrative Agent’s receipt of such notice and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute promptly release such documents as the Borrower may reasonably request Material Subsidiaries described in clause (and at the expense c) of the Borrower) to evidence the release of a Guarantor definition thereof from the Guaranty; provided however that notwithstanding the foregoing, (A) Agent shall not be obligated to release any such Material Subsidiary from the Guaranty in the event that a Default or Event of Default shall have occurred and be continuing, and (B) no such Material Subsidiary shall be released in the event that such Material Subsidiary constitutes a Material Subsidiary within the meaning of clauses (a) or (b) of the definition thereof. In the event that at any time after Borrower has an Investment Grade Rating, Borrower shall no longer have an Investment Grade Rating, Borrower and REIT shall within thirty (30) days (or such later date as agreed to by Agent) after such occurrence cause all Material Subsidiaries of the type described in clause (c) of the definition thereof to execute a Joinder Agreement and shall further cause to be satisfied within such thirty (30) day period (or such longer period as agreed to by Agent) all of the provisions of §5.5(a) that would be applicable to the addition of a new Guarantor. For the avoidance of doubt, if at any time during which the Borrower has an Investment Grade Rating the provisions of clause (b) of the definition of Material Subsidiary shall be applicable to a Subsidiary of Borrower, the Borrower shall be required to cause such Subsidiary to become a Guarantor by executing a Joinder Agreement and comply with the provisions of §5.5(a) as a condition to such Subsidiary's becoming a borrower, guarantor or other obligor with respect to Recourse Indebtedness or to be a guarantor of or to be otherwise liable with respect to any Indebtedness of another Person.
(e) The provisions of §5.5(b), (c) and (d) shall not entitle Borrower, General Partner, Limited Partner or the REIT to any release from the Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Monogram Residential Trust, Inc.)
Additional Guarantors; Release of Guarantors. (a) No later than the date the Borrower is required to deliver a Compliance Certificate pursuant to Section 7.02(a) with respect to a fiscal quarter (or fiscal year in the case of the fourth fiscal quarter of a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any Subsidiary, the Borrower shall cause such Subsidiary to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose) each of the following in form and substance satisfactory to the Administrative Agent: (i) a counterpart of the Guaranty or such other document as the Administrative Agent may deem appropriate for such purpose executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this AgreementAgreement Date; provided, however, the requirement for delivery of a legal opinion referred to in Section 5.01(a)(v) shall only apply to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributable.
(b) The Borrower may notify the Administrative Agent in writing that a Guarantor (other than the Parent) is to be released from the Guaranty, and following receipt of such notice the Administrative Agent shall release such Guarantor from the Guaranty, so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a); (ii) no Default shall then be in existence or would occur as a result of such release, including without limitation; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received such written notice 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 notice 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. Unless the Administrative Agent notifies the Borrower otherwise, such Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense of the Borrower) to evidence the release of a Guarantor from the Guaranty.
(l) Section 8.02 of the Credit Agreement is amended and restated to read as follows:
Appears in 1 contract
Additional Guarantors; Release of Guarantors. (a) No later If any Person (other than a Non-Guarantor Subsidiary) becomes a Subsidiary of the date Principal Borrower or upon the formation of any Preferred Stock Subsidiary or if at any time any Non-Guarantor Subsidiary qualifying as such as a result of clauses (a), (b) or (c) of the definition thereof could become a Loan Party without violating the terms of any material contract, agreement or document to which it is a party, the Principal Borrower is required to deliver a Compliance Certificate shall, within thirty (30) days after delivery of the Quarterly Subsidiary Joinder Statement pursuant to Section 7.02(a6.02(b)(i), (i) with respect to if such Person is a fiscal quarter (or fiscal year in the case Domestic Subsidiary of the fourth fiscal quarter of Principal Borrower or a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any Preferred Stock Subsidiary, the Borrower shall cause such Subsidiary Person to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose, and (ii) each cause such Person to deliver to the Administrative Agent documents of the following types referred to in form clauses (iii) and substance (iv) of Section 4.01(a), all in form, content and scope reasonably satisfactory to the Administrative Agent: ; provided, that to the extent such Person holds (i) a counterpart whether upon delivery of the Guaranty items required above or such other document as at any time after the delivery of the items required above) assets with a fair market value in excess of $5,000,000 or to the extent requested by Administrative Agent, the Borrowers shall cause to be delivered to the Administrative Agent may deem appropriate for favorable opinions of counsel to such purpose executed by such Subsidiary and Person (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; providedwhich shall cover, howeveramong other things, the requirement for delivery legality, validity, binding effect and enforceability of a legal opinion the documentation referred to in Section 5.01(a)(v) this clause (a)). If a Non-Guarantor Subsidiary executes and delivers the Guaranty it shall only apply to no longer be deemed a Non-Guarantor Subsidiary to which $15,000,000 or more of Total Asset Value is attributableunder this Agreement.
(b) The Notwithstanding any other provisions of this Agreement to the contrary, to the extent a Guarantor anticipates becoming or intends to become a Non-Guarantor Subsidiary pursuant to any of clauses (b), (c) or (d) of the definition thereof, the Principal Borrower may notify request a release of such Guarantor as a Guarantor hereunder in accordance with the following:
(i) the Principal Borrower shall deliver to the Administrative Agent, not less than ten (10) days and not more than thirty (30) days prior to the anticipated or intended conversion of a Guarantor into a Non-Guarantor Subsidiary, a written request for release of the applicable Guarantor and a pro forma compliance certificate of the chief financial officer of the Principal Borrower in form and substance acceptable to the Administrative Agent, (A) demonstrating that upon such release the Loan Parties will on a pro forma basis continue to comply with (1) the financial covenants contained in Section 7.11 and (2) the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any Consolidated Party, in each case by a reasonably detailed calculation thereof (which calculation shall be in form reasonably satisfactory to the Administrative Agent and which shall include, among other things, an explanation of the methodology used in writing that such calculation and a Guarantor (other than breakdown of the Parent) is to be released from the Guaranty, and following receipt components of such notice the Administrative Agent shall release such Guarantor from the Guarantycalculation), so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) stating that the Loan Parties will be in compliance with each of the covenants set forth in Articles VI and VII of the Agreement at all times following such Guarantor is not otherwise required release, (C) stating that, following such release, no Default or Event of Default will exist under the Agreement or any of the other Loan Documents, or if any Default or Event of Default will exist, specifying the nature and extent thereof and what action the Loan Parties propose to be a party take with respect thereto, and (D) attaching, pursuant to Section 5.13 of the Agreement, an updated version of Schedule 5.13 to the Guaranty under the immediately preceding subsection (a); Agreement;
(ii) no Default shall then be in existence or would occur as a result of such release; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received reviewed and approved (in writing) the request for release and pro forma compliance certificate delivered pursuant to subclause (i) above; provided, that the failure of the Administrative Agent to respond to such written notice at least 10 Business Days a request within ten (or such shorter period as may be acceptable to 10) days of its receipt thereof shall constitute the Administrative Agent’s approval thereof; provided, that any approval of the Administrative Agent provided pursuant to this subclause (ii) shall lapse and be null and void thirty (30) days following the granting thereof if the applicable Guarantor has not, on or prior to the requested date completion of release. Delivery such period, met the criteria for qualification as a Non-Guarantor Subsidiary (as evidenced by the delivery by the Principal Borrower of a notice and certification in accordance with subclause (iii) below); and
(iii) the Principal Borrower shall, concurrently with or promptly following the applicable Guarantor’s satisfaction of the criteria for qualification as a Non-Guarantor Subsidiary deliver to the Administrative Agent a notice and certification of such qualification. Notwithstanding any language to the contrary above, so long as the chief financial officer of the Principal Borrower has certified in a compliance certificate (and the Administrative Agent has no evidence or information which brings into reasonable doubt the veracity of such certifications) that: (A) upon such release the Loan Parties (1) will on a pro forma basis continue to comply with the financial covenants contained in Section 7.11 hereof, and the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any such notice shall constitute a representation by Consolidated Party, and (2) will be in compliance with each of the Borrower that the matters covenants set forth in the preceding sentence (both as Articles VI and VII of the date Agreement at all times following such release, (B) following such release, no Default or Event of Default will exist under this Agreement or any of the giving other Loan Documents, or if any Default or Event of such request Default will exist, the nature and as extent thereof and what action the Loan Parties propose to take with respect thereto will be specified, and (C) attached pursuant to Section 5.13 of the date Agreement, is an updated version of Schedule 5.13 to the effectiveness of such request) are true Agreement, the request for release shall be approved and correct with respect to such request. Unless issued by the Administrative Agent notifies within the Borrower otherwise10-day time period specified in subsection (b)(ii). Upon satisfaction of each of the above-noted conditions, such a Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice obligations hereunder and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense under each of the Borrower) to evidence the release of a Guarantor from the GuarantyLoan Documents.
Appears in 1 contract
Samples: Credit Agreement (Highwoods Realty LTD Partnership)
Additional Guarantors; Release of Guarantors. (a) No Within thirty (30) days (or such later than date as the date Agent may agree in its sole discretion) after (i) any Person becomes a Material Subsidiary, cause such Person to, or (ii) the Loan Parties fail to own all of the Intellectual Property of the Borrower is required to deliver a Compliance Certificate pursuant to Section 7.02(aand its Subsidiaries or at least ninety-five percent (95%) with respect to a fiscal quarter (or fiscal year in the case of the fourth fiscal quarter total inventory of a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any Subsidiary, the Borrower shall and its Subsidiaries or at least ninety-five percent (95%) of the total accounts receivable of the Borrower and its Subsidiaries, cause such Subsidiary Persons as are necessary to be in compliance with the foregoing to, in each case, (x) become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (Joinder Agreement or such other document documents as the Administrative Agent shall deem appropriate for such purpose, and (y) each deliver to the Agent such Organization Documents, resolutions and opinions of the following counsel, all in form form, content and substance scope reasonably satisfactory to the Administrative Agent: ; provided, however, except as required to comply with clause (ii) above, no Foreign Subsidiary shall be required to become a Guarantor to the extent such Guaranty would result in a material adverse tax consequence for the Borrower.
(b) So long as no Default shall exist, in the event a Guarantor ceases to meet the standards to be a Material Subsidiary, upon the written request of the Borrower, such Guarantor shall be released from the Guaranty and the Security Agreement, and any financing statement or other filing against it in perfection of a security interest released or terminated. The Agent shall (to the extent applicable) deliver to the Borrower, upon the Borrower’s request and at the Borrower’s expense, such documentation as is reasonably necessary to evidence the release of such Guarantor(s).
(c) Upon the written request of the Borrower during any time that (i) a counterpart of the Guaranty or such other document as the Administrative Agent may deem appropriate for such purpose executed by such Subsidiary no Default shall exist and (ii) the items that would Ratings Condition shall have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; provided, howeversatisfied, the requirement for delivery of a legal opinion referred to in Section 5.01(a)(v) shall only apply to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributable.
(b) The Borrower may notify guarantee provided by the Administrative Agent in writing that a Guarantor (other than the Parent) is to be released from the Guaranty, and following receipt of such notice the Administrative Agent shall release such Guarantor from the Guaranty, so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) such Guarantor is not otherwise required to be a party Guarantors pursuant to the Guaranty under the immediately preceding subsection (a); (ii) no Default shall then be in existence or would occur as a result of such release; (iii) 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 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 released. The Agent shall (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 on and as of such earlier date); and (ivapplicable) the Administrative Agent shall have received such written notice at least 10 Business Days (or such shorter period as may be acceptable deliver to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such notice 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. Unless the Administrative Agent notifies the Borrower otherwiseBorrower, such Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense of the Borrower) ’s expense, such documentation as is reasonably necessary to evidence the release of the Guarantors.
(d) At any time following a Guarantor from release of the GuarantyGuarantors pursuant to clause (c) above, if a Collateral Trigger Event has occurred, then the Loan Parties shall be required to comply with clause (a) above until the date thereafter, if any, that the Guarantors are released pursuant to clause (c) above.
Appears in 1 contract
Additional Guarantors; Release of Guarantors. (a) No later If (x) any Person (other than a Non-Guarantor Subsidiary) becomes a Material Subsidiary of the date Principal Borrower, (y) at any time any Non-Guarantor Subsidiary qualifying as such as a result of clauses (a), (b) or (c) of the definition thereof could become a Loan Party without violating the terms of any material contract, agreement or document to which it is a party, or (z) a Subsidiary of the Principal Borrower is required to deliver a Compliance Certificate pursuant to Section 7.02(a) with guarantees, or otherwise becomes obligated in respect to a fiscal quarter (or fiscal year of, any Unsecured Debt of the Consolidated Parties, the Principal Borrower shall, contemporaneously, in the case of clause (z), and within thirty (30) days after delivery of the fourth fiscal quarter Quarterly Subsidiary Joinder Statement pursuant to Section 6.02(b)(i) (or such longer period as may be agreed to by the Administrative Agent) in the case of clauses (x) and (y), (i) if such Person is a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any SubsidiaryDomestic Subsidiary of the Principal Borrower, the Borrower shall cause such Subsidiary Person to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose, and (ii) each cause such Person to deliver to the Administrative Agent documents of the following types referred to in form clauses (iii) and substance (iv) of Section 4.01(a), all in form, content and scope reasonably satisfactory to the Administrative Agent: ; provided, that to the extent such Person holds (i) a counterpart whether upon delivery of the Guaranty items required above or such other document as at any time after the delivery of the items required above) assets with a fair market value in excess of $5,000,000 or to the extent requested by Administrative Agent, the Borrowers shall cause to be delivered to the Administrative Agent may deem appropriate for favorable opinions of counsel to such purpose executed by such Subsidiary and Person (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; providedwhich shall cover, howeveramong other things, the requirement for delivery legality, validity, binding effect and enforceability of a legal opinion the documentation referred to in Section 5.01(a)(v) this clause (a)). If a Non-Guarantor Subsidiary executes and delivers the Guaranty, it shall only apply to no longer be deemed a Non-Guarantor Subsidiary to which $15,000,000 or more of Total Asset Value is attributableunder this Agreement.
(b) The Notwithstanding any other provisions of this Agreement to the contrary, to the extent a Guarantor anticipates becoming or intends to become a Non-Guarantor Subsidiary pursuant to any of clauses (b), (c) or (d) of the definition thereof, the Principal Borrower may notify request a release of such Guarantor as a Guarantor hereunder in accordance with the following:
(i) the Principal Borrower shall deliver to the Administrative Agent, not less than ten (10) days and not more than thirty (30) days prior to the anticipated or intended conversion of a Guarantor into a Non-Guarantor Subsidiary, a written request for release of the applicable Guarantor and a pro forma compliance certificate of the chief financial officer of the Principal Borrower in form and substance acceptable to the Administrative Agent, (A) demonstrating that upon such release the Loan Parties will on a pro forma basis continue to comply with (1) the financial covenants contained in Section 7.11 and (2) the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any Consolidated Party, in each case by a reasonably detailed calculation thereof (which calculation shall be in form reasonably satisfactory to the Administrative Agent and which shall include, among other things, an explanation of the methodology used in writing that such calculation and a Guarantor (other than breakdown of the Parent) is to be released from the Guaranty, and following receipt components of such notice the Administrative Agent shall release such Guarantor from the Guarantycalculation), so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) stating that the Loan Parties will be in compliance with each of the covenants set forth in Articles VI and VII of the Agreement at all times following such Guarantor is not otherwise required release, (C) stating that, following such release, no Default or Event of Default will exist under the Agreement or any of the other Loan Documents, or if any Default or Event of Default will exist, specifying the nature and extent thereof and what action the Loan Parties propose to be a party take with respect thereto, and (D) attaching, pursuant to Section 5.13 of the Agreement, an updated version of Schedule 5.13 to the Guaranty under the immediately preceding subsection (a); Agreement;
(ii) no Default shall then be in existence or would occur as a result of such release; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received reviewed and approved (in writing) the request for release and pro forma compliance certificate delivered pursuant to subclause (i) above; provided, that the failure of the Administrative Agent to respond to such written notice at least 10 Business Days a request within ten (or such shorter period as may be acceptable to 10) days of its receipt thereof shall constitute the Administrative Agent’s approval thereof; provided, that any approval of the Administrative Agent provided pursuant to this subclause (ii) shall lapse and be null and void thirty (30) days following the granting thereof if the applicable Guarantor has not, on or prior to the requested date completion of release. Delivery such period, met the criteria for qualification as a Non-Guarantor Subsidiary (as evidenced by the delivery by the Principal Borrower of a notice and certification in accordance with subclause (iii) below); and
(iii) the Principal Borrower shall, concurrently with or promptly following the applicable Guarantor’s satisfaction of the criteria for qualification as a Non-Guarantor Subsidiary deliver to the Administrative Agent a notice and certification of such qualification. Notwithstanding any language to the contrary above, so long as the chief financial officer of the Principal Borrower has certified in a compliance certificate (and the Administrative Agent has no evidence or information which brings into reasonable doubt the veracity of such certifications) that: (A) upon such release the Loan Parties (1) will on a pro forma basis continue to comply with the financial covenants contained in Section 7.11 hereof, and the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any such notice shall constitute a representation by Consolidated Party, and (2) will be in compliance with each of the Borrower that the matters covenants set forth in the preceding sentence (both as Articles VI and VII of the date Agreement at all times following such release, (B) following such release, no Default or Event of Default will exist under this Agreement or any of the giving other Loan Documents, or if any Default or Event of such request Default will exist, the nature and as extent thereof and what action the Loan Parties propose to take with respect thereto will be specified, and (C) attached pursuant to Section 5.13 of the date Agreement, is an updated version of Schedule 5.13 to the effectiveness of such request) are true Agreement, the request for release shall be approved and correct with respect to such request. Unless issued by the Administrative Agent notifies within the Borrower otherwiseten (10)-day time period specified in subsection (b)(ii). Upon satisfaction of each of the above-noted conditions, such a Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice obligations hereunder and the date set forth in such notice as the requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense under each of the Borrower) to evidence the release of a Guarantor from the GuarantyLoan Documents.
Appears in 1 contract
Samples: Credit Agreement (Highwoods Realty LTD Partnership)
Additional Guarantors; Release of Guarantors. (a) No later If any Person (other than a Non-Guarantor Subsidiary) becomes a Subsidiary of any Loan Party or upon the date the Borrower is required to deliver formation of any Preferred Stock Subsidiary or if at any time any Non-Guarantor Subsidiary qualifying as such as a Compliance Certificate pursuant to Section 7.02(aresult of clauses (a), (b) with respect to a fiscal quarter or (or fiscal year in the case c) of the fourth fiscal quarter definition thereof could become a Loan Party without violating the terms of any material contract, agreement or document to which it is a party, the Principal Borrower shall (i) if such Person is a Domestic Subsidiary of a fiscal year) during which any Required Guarantee Condition is satisfied with respect to any Loan Party or a Preferred Stock Subsidiary, the Borrower shall cause such Subsidiary Person to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty (or such other document as the Administrative Agent shall deem appropriate for such purpose, (ii) each provide the Administrative Agent with notice thereof on a quarterly basis by delivering a Quarterly Stock Repurchase/Joinder Statement and other documentation as required in Section 6.12(b)(iii), and (iii) cause such Person to deliver to the Administrative Agent documents of the following types referred to in form clauses (iii) and substance (iv) of Section 4.01(a), all in form, content and scope reasonably satisfactory to the Administrative Agent: ; provided, that to the extent such Person holds (i) a counterpart whether upon delivery of the Guaranty items required above or such other document as at any time after the delivery of the items required above) assets with a fair market value in excess of $5,000,000 or to the extent requested by Administrative Agent, the Borrowers shall cause to be delivered to the Administrative Agent may deem appropriate for favorable opinions of counsel to such purpose executed by such Subsidiary and Person (ii) the items that would have been delivered under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the date of this Agreement; providedwhich shall cover, howeveramong other things, the requirement for delivery legality, validity, binding effect and enforceability of a legal opinion the documentation referred to in Section 5.01(a)(v) this clause (a)). If a Non-Guarantor Subsidiary executes and delivers the Guaranty it shall only apply to no longer be deemed a Non-Guarantor Subsidiary to which $15,000,000 or more of Total Asset Value is attributableunder this Credit Agreement.
(b) The Notwithstanding any other provisions of this Agreement to the contrary, to the extent a Guarantor anticipates becoming or intends to become a Non-Guarantor Subsidiary pursuant to any of clauses (b), (c) or (d) of the definition thereof, the Principal Borrower may notify request a release of such Guarantor as a Guarantor hereunder in accordance with the following:
(i) the Principal Borrower shall deliver to the Administrative Agent, not less than ten (10) days and not more than thirty (30) days prior to the anticipated or intended conversion of a Guarantor into a Non-Guarantor Subsidiary, a written request for release of the applicable Guarantor and a pro forma compliance certificate of the chief financial officer of the Principal Borrower in form and substance acceptable to the Administrative Agent, (A) demonstrating that upon such release the Loan Parties will on a pro forma basis continue to comply with (1) the financial covenants contained in Section 7.08 and (2) the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any Consolidated Party, in each case by a reasonably detailed calculation thereof (which calculation shall be in form reasonably satisfactory to the Administrative Agent and which shall include, among other things, an explanation of the methodology used in writing that such calculation and a Guarantor (other than breakdown of the Parent) is to be released from the Guaranty, and following receipt components of such notice the Administrative Agent shall release such Guarantor from the Guarantycalculation), so long as: (i) either (A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or (B) stating that the Loan Parties will be in compliance with each of the covenants set forth in Articles VI and VII of the Agreement at all times following such Guarantor is not otherwise required release, (C) stating that, following such release, no Default or Event of Default will exist under the Agreement or any of the other Loan Documents, or if any Default or Event of Default will exist, specifying the nature and extent thereof and what action the Loan Parties propose to be a party take with respect thereto, and (D) attaching, pursuant to Section 5.13 of the Agreement, an updated version of Schedule 5.13 to the Guaranty under the immediately preceding subsection (a); Agreement;
(ii) no Default shall then be in existence or would occur as a result of such release; (iii) 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 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 on and as of such earlier date); and (iv) the Administrative Agent shall have received such written notice at least 10 Business Days reviewed and approved (or such shorter period as may be acceptable in writing) the request for release and pro forma compliance certificate delivered pursuant to subclause (i) above; provided, that the Administrative Agent) prior to the requested date failure of release. Delivery by the Borrower to the Administrative Agent of any such notice 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 respond to such request. Unless the Administrative Agent notifies the Borrower otherwise, such Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of a request within ten (10) Business Days following of its receipt thereof shall constitute the Administrative Agent’s receipt approval thereof; provided, that any approval of the Administrative Agent provided pursuant to this subclause (ii) shall lapse and be null and void thirty (30) days following the granting thereof if the applicable Guarantor has not, on or prior to the completion of such period, met the criteria for qualification as a Non-Guarantor Subsidiary (as evidenced by the delivery by the Principal Borrower of a notice and certification in accordance with subclause (iii) below); and
(iii) the date Principal Borrower shall, concurrently with or promptly following the applicable Guarantor’s satisfaction of the criteria for qualification as a Non-Guarantor Subsidiary deliver to the Administrative Agent a notice and certification of such qualification. Notwithstanding any language to the contrary above, so long as the chief financial officer of the Principal Borrower has certified in a compliance certificate (and the Administrative Agent has no evidence or information which brings into reasonable doubt the veracity of such certifications) that: (A) upon such release the Loan Parties (1) will on a pro forma basis continue to comply with the financial covenants contained in Section 7.08 hereof, and the financial covenants contained in each of the indentures or other agreements relating to any publicly issued debt securities of any Consolidated Party, and (2) will be in compliance with each of the covenants set forth in Articles VI and VII of the Agreement at all times following such notice as release, (B) following such release, no Default or Event of Default will exist under the requested date Credit Agreement or any of release. Upon the Borrower’s written requestother Loan Documents, or if any Default or Event of Default will exist, the nature and extent thereof and what action the Loan Parties propose to take with respect thereto will be specified, and (C) attached pursuant to Section 5.13 of the Agreement, is an updated version of Schedule 5.13 to the Agreement, the request for release shall be approved and issued by the Administrative Agent shall execute such documents as within the Borrower may reasonably request 10-day time period specified in subsection (and at the expense b)(ii). Upon satisfaction of each of the Borrower) to evidence the release of above-noted conditions, a Guarantor shall be deemed released from its obligations hereunder and under each of the GuarantyLoan Documents.
Appears in 1 contract
Samples: Term Loan Agreement (Highwoods Realty LTD Partnership)
