Designation of Subsidiaries and Release of Guarantors Sample Clauses

Open Split View

Download

Share

Cite

Designation of Subsidiaries and Release of Guarantors 

Sample 1Sample 2Sample 3See All (5)

Save

Copy

Related to Designation of Subsidiaries and Release of Guarantors

• Release of Subsidiary Guarantors from Guarantee (a) Notwithstanding any other provisions of this Indenture, the Guarantee of any Subsidiary Guarantor may be released upon the terms and subject to the conditions set forth in Section 11.02(b) and in this Section 14.04. Provided that no Default shall have occurred and shall be continuing under this Indenture, the Guarantee incurred by a Subsidiary Guarantor pursuant to this Article XIV shall be unconditionally released and discharged (i) automatically upon (A) any sale, exchange or transfer, whether by way of merger or otherwise, to any Person that is not an Affiliate of the Partnership, of all of the Partnership’s direct or indirect limited partnership or other equity interests in such Subsidiary Guarantor (provided such sale, exchange or transfer is not prohibited by this Indenture) or (B) the merger of such Subsidiary Guarantor into either of the Issuers or any other Subsidiary Guarantor or the liquidation and dissolution of such Subsidiary Guarantor (in each case to the extent not prohibited by this Indenture) or (ii) upon the Issuers’ delivery of a written notice to the Trustee of the release or discharge of all guarantees by such Subsidiary Guarantor of any Debt of the Issuers other than obligations arising under this Indenture and any Debt Securities issued hereunder, except a discharge or release by or as a result of payment under such guarantees. (b) The Trustee shall deliver an appropriate instrument evidencing any release of a Subsidiary Guarantor from the Guarantee upon receipt of a written request of the Issuers accompanied by an Officers’ Certificate and an Opinion of Counsel to the effect that the Subsidiary Guarantor is entitled to such release in accordance with the provisions of this Indenture. Any Subsidiary Guarantor not so released shall remain liable for the full amount of principal of (and premium, if any) and interest on the Debt Securities entitled to the benefits of the Guarantee as provided in this Indenture, subject to the limitations of Section 14.03.

• Release of Subsidiary Guarantors Unless otherwise specified pursuant to Section 301 with respect to a series of Securities, each Subsidiary Guarantee will remain in effect with respect to the respective Subsidiary Guarantor until the entire principal of, premium, if any, and interest on the Securities to which such Subsidiary Guarantee relates shall have been paid in full or otherwise satisfied and discharged in accordance with the provisions of such Securities and this Indenture and all amounts owing to the Trustee hereunder have been paid; provided, however, that if (i) such Subsidiary Guarantor ceases to be a Subsidiary in compliance with the applicable provisions of this Indenture, (ii) either Defeasance or Covenant Defeasance occurs with respect to such Securities pursuant to Article Fifteen or (iii) all or substantially all of the assets of such Subsidiary Guarantor or all of the Capital Stock of such Subsidiary Guarantor is sold (including by sale, merger, consolidation or otherwise) by the Company or any Subsidiary in a transaction complying with the requirements of this Indenture, then, in each case of (i), (ii) or (iii), upon delivery by the Company of an Officers’ Certificate and an Opinion of Counsel stating that all conditions precedent herein provided for relating to the release of such Subsidiary Guarantor from its obligations under its Subsidiary Guarantee and this Article Thirteen have been complied with, such Subsidiary Guarantor shall be released and discharged of its obligations under its Subsidiary Guarantee and under this Article Thirteen without any action on the part of the Trustee or any Holder, and the Trustee shall execute any documents reasonably required in order to acknowledge the release of such Subsidiary Guarantor from its obligations under its Subsidiary Guarantee endorsed on the Securities of such series and under this Article Thirteen.

• Release of Guarantors Notwithstanding anything in Section 9.02(b) to the contrary, any Subsidiary Guarantor shall automatically be released from its obligations hereunder (and its Loan Guaranty shall be automatically released) (a) upon the consummation of any permitted transaction or series of related transactions if as a result thereof such Subsidiary Guarantor ceases to be a Restricted Subsidiary (or becomes an Excluded Subsidiary as a result of a single transaction or series of related transactions permitted hereunder; provided, that the release of any Subsidiary Guarantor from its obligations under the Loan Guaranty if such Subsidiary Guarantor becomes an Excluded Subsidiary of the type described in clause (a) of the definition thereof shall only be permitted if at the time such Guarantor becomes an Excluded Subsidiary of such type (i) no Event of Default exists, (ii) after giving pro forma effect to such release and the consummation of the transaction that causes such Person to be an Excluded Subsidiary of such type, the Borrower is deemed to have made a new Investment in such Person for purposes of Section 6.06 (as if such Person were then newly acquired) in an amount equal to the portion of the fair market value of the net assets of such Person attributable to the Borrower’s equity interest therein as reasonably estimated by the Borrower and such Investment is permitted pursuant to Section 6.06 (other than Section 6.06(f)) at such time and (iii) a Responsible Officer of the Borrower certifies to the Administrative Agent compliance with preceding clauses (i) and (ii)) and/or (b) upon the occurrence of the Termination Date. In connection with any such release, the Administrative Agent shall promptly execute and deliver to the relevant Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence termination or release; provided, that upon the request of the Administrative Agent, the Borrower shall deliver a certificate of a Responsible Officer certifying that the relevant transaction has been consummated in compliance with the terms of this Agreement. Any execution and delivery of documents pursuant to the preceding sentence of this Section 9.22 shall be without recourse to or warranty by the Administrative Agent (other than as to the Administrative Agent’s authority to execute and deliver such documents).

• Release of Subsidiary Guarantor (a) The Subsidiary Guarantee of a Subsidiary Guarantor shall be automatically released without any action required by the Trustee or Holders: (i) in the event the Capital Stock of a Subsidiary Guarantor is sold or all of the assets of a Subsidiary Guarantor are sold (including by way of merger, consolidation or otherwise) by the Company or a Restricted Subsidiary and the sale complies with the provisions set forth in Section 4.10 and if as a result of such sale, such Subsidiary Guarantor ceases to be a Restricted Subsidiary; (ii) upon the designation of any Subsidiary Guarantor to be an Unrestricted Subsidiary in compliance with the definition of “Unrestricted Subsidiary”; (iii) upon legal defeasance or satisfaction and discharge of the Notes in compliance with the provisions of this Indenture described under Article Eight and Article Eleven, respectively; (iv) if such Subsidiary Guarantor shall have been released from its guarantee of Indebtedness under all Material Credit Facilities; or (v) if such Subsidiary Guarantee shall have been released pursuant to Section 9.02. (b) At the request of the Company, and upon delivery to the Trustee of an Officers’ Certificate and an Opinion of Counsel that a release complies with this Indenture, the Trustee shall execute and deliver such instruments reasonably requested by the Company evidencing the release of such Subsidiary Guarantor from its Subsidiary Guarantee (it being understood that the failure to obtain any such instrument shall not impair any automatic release pursuant to Section 10.05(a)). Any Subsidiary Guarantor not released from its obligations under its Subsidiary Guarantee as provided in Section 10.05(a) shall remain liable for the full amount of principal and interest, if any, on the Notes and for the other obligations of any Subsidiary Guarantor under this Indenture as provided in this Article Ten.

• Release of Guarantor (a) In addition to the release provisions set forth in the Indenture, subject to Section 702(d), the Guarantor shall be released and relieved from all of its obligations under this Article Seven, and the Guarantee shall be terminated and be of no further force or effect, upon the request of the Company (without the consent of the Trustee) if, immediately after giving effect to such release and termination (and, if applicable, any transaction in connection therewith, including any other concurrent release, termination, repayment or discharge of any other guarantee or other Debt of the Guarantor), the Company would be in compliance with Section 504 hereof, including in the event of a sale or other disposition as a result of which the Guarantor would cease to be a Subsidiary. (b) In order to effect the release and termination provided for in Section 702(a), the Company shall furnish to the Trustee an Officers’ Certificate stating that, immediately after giving effect to such release and termination (as well as any concurrent release, termination, repayment or discharge of any other guarantee or other Debt of the Guarantor), the Company will be in compliance with Section 504 hereof. In the event that the release and termination is in connection with a sale or other disposition as a result of which the Guarantor would cease to be a Subsidiary, pro forma effect shall be given to such disposition (including the application of any proceeds therefrom) in determining the Company’s compliance with Section 504 and, accordingly, the amount of Debt subject to the Guarantee and any other Debt of the Guarantor shall be excluded from any calculation thereunder. Notwithstanding any provision to the contrary in the Indenture or this Supplemental Indenture, no opinion, report or certificate, other than the Officers’ Certificate provided for in this Section 702(b), need be furnished to the Trustee for such release and termination. After its receipt of the aforementioned Officers’ Certificate, the Trustee shall execute any documents reasonably requested by either the Company or the Guarantor in order to evidence the release of the Guarantor from its obligations under the Guarantee under this Article Seven. (c) No supplemental indenture, amendment or waiver shall, without the consent of the Holder of each Outstanding Note, release the Guarantor from any of its obligations under Section 701, other than in accordance with the provisions of this Section 702 or the other release provisions set forth in the Indenture, or amend or modify the release provisions of this Section 702. (d) Notwithstanding the release provisions of Section 702(a), the Guarantor shall not be released from its obligations under this Article Seven and the Guarantee will not be terminated if, immediately after such release and termination (and, if applicable, after giving effect to any transaction to occur concurrently therewith), the Guarantor remains a co-obligor with or a guarantor for, as applicable, the obligations of the Company under any Existing Note. SECTION 703. AMALGAMATION, CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE. (a) Unless the Guarantor has been released, or in connection with such transaction will be released, from its obligations under the Guarantee in accordance with the provisions of Section 702 hereof or any other release provision set forth in the Indenture, the Guarantor shall not amalgamate or consolidate with or merge with or into any other Person or convey, transfer, lease or otherwise dispose of its properties and assets substantially as an entirety to any Person by liquidation, winding-up or otherwise (in one transaction or a series of related transactions) unless: (i) immediately after giving effect to such transaction (and treating any Debt which becomes an obligation of the Guarantor or a Subsidiary of the Guarantor in connection with or as a result of such transaction as having been incurred at the time of such transaction), no Default or Event of Default shall have occurred and be continuing; (ii) either (x) the Guarantor shall be the continuing Person or (y) the Person (if other than the Guarantor) formed by such amalgamation or consolidation or into which the Guarantor is merged or the Person which acquires by conveyance, transfer, lease or other disposition the properties and assets of the Guarantor substantially as an entirety (the “Successor Guarantor”) shall, unless the Successor Guarantor is the Company, (A) be a corporation, company, partnership or trust organized and validly existing under the federal laws of Canada or any Province thereof or the laws of the United States of America or any State thereof or the District of Columbia and (B) expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Guarantor under the Guarantee (provided, however, that the Successor Guarantor shall not be required to execute and deliver such a supplemental indenture in the event of an amalgamation of the Guarantor with one or more other Persons, in which the amalgamation is governed by the laws of Canada or any province thereof, the Successor Guarantor and the Guarantor are, immediately prior to such amalgamation, organized and existing under the laws of Canada or any province thereof and upon the effectiveness of such amalgamation, the Successor Guarantor shall have become or shall continue to be (as the case may be), by operation of law, liable for the observance of all obligations of the Guarantor under the Guarantee); and (iii) the Guarantor, the Company or the Successor Guarantor, as applicable, shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such amalgamation, consolidation, merger, conveyance, transfer, lease or other disposition and, if a supplemental indenture is required in connection with such transaction (or series of transactions), such supplemental indenture, comply with this Section 703(a) and that all conditions precedent herein provided for relating to such transaction have been satisfied. (b) Upon any amalgamation, consolidation or merger, or any conveyance, transfer, lease or other disposition of the properties and assets of the Guarantor substantially as an entirety in accordance with Section 703(a), the Successor Guarantor shall succeed to, and be substituted for, and may exercise every right and power of, the Guarantor under this Supplemental Indenture and the Indenture with the same effect as if such Successor Guarantor had been named as the Guarantor herein; and thereafter, except in the case of a lease, the Guarantor shall be released and relieved from all of its obligations under this Article Seven, and the Guarantee shall be terminated and be of no further force or effect.

• Designation of Subsidiaries as Account Parties Notwithstanding anything to the contrary set forth in this Agreement, including, without limitation, Section 2.3(a), a Letter of Credit issued hereunder may contain a statement to the effect that such Letter of Credit is issued for the account of a Subsidiary of the Borrower; provided that, notwithstanding such statement, the Borrower shall be the actual account party for all purposes of this Agreement for such Letter of Credit and such statement shall not affect the Borrower’s Reimbursement Obligations hereunder with respect to such Letter of Credit.

• Release of Guarantee This Guarantee shall be released in accordance with Section 10.2 of the Indenture.

• Release of a Subsidiary Guarantor (a) Notwithstanding anything to the contrary in this Indenture, a Subsidiary Guarantee as to any Subsidiary Guarantor shall automatically terminate and be of no further force or effect and such Subsidiary Guarantor shall be deemed to be released and discharged from all obligations under this Article 10 upon: (i) a sale or other disposition of all or substantially all of the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise permitted under this Indenture; (ii) a sale or other disposition of all of the capital stock of any Subsidiary Guarantor permitted under this Indenture; (iii) the Issuers’ exercise of their legal defeasance option as described under Section 8.04 or if the Issuers’ obligations under this Indenture are discharged in accordance with the terms of this Indenture; (iv) such Person is the parent holding company of a Real Estate Subsidiary party to a Qualified Real Estate Financing Facility if such guaranty is prohibited by the terms of such Qualified Real Estate Financing Facility; (v) the Issuers designating such Subsidiary Guarantor to be an Unrestricted Subsidiary in accordance with the provisions set forth under Section 4.04 and the definition of “Unrestricted Subsidiary”; (vi) if any such Subsidiary Guarantor no longer guarantees any Reference Indebtedness or any Reference Indebtedness of such Subsidiary Guarantor is no longer outstanding; or (vii) the applicable Subsidiary ceasing to be a Subsidiary as a result of any foreclosure of any pledge or security interest securing Obligations under the Credit Facilities or other exercise of remedies in respect thereof. Notwithstanding the foregoing, any Subsidiary Guarantor will automatically be released from all obligations under its Subsidiary Guarantee, and such Subsidiary Guarantee shall thereupon terminate and be discharged and of no further force and effect, upon the merger or consolidation of any Subsidiary Guarantor with and into an Issuer or another Subsidiary Guarantor that is the surviving Person in such merger or consolidation, or upon the liquidation or dissolution of such Subsidiary Guarantor following the transfer of all of its assets to an Issuer or another Subsidiary Guarantor.

• Release of Guaranties Prior to the Closing Date, Seller and Buyer shall cooperate and shall use their respective reasonable best efforts to, effective as of the Closing Date, terminate or cause to be terminated, in each case without obligation or liability on the part of Seller or any of its Affiliates (other than the Sold Companies) (collectively, the "Seller Guarantors"), or cause Buyer or one of its Affiliates to be substituted for such Seller Guarantor, in respect of all liabilities and obligations of the Seller Guarantors under guarantees of or relating primarily to obligations or liabilities (including under any Contract or letter of credit or relating to any Leased Real Property) of the Business and the Sold Companies, including those listed on Schedule 5.13 (the "Guaranties"). In the event the foregoing actions are not completed by the Closing Date, then Buyer shall indemnify and hold harmless the Seller Guarantors from and against all Losses incurred by any such Person as a result of such failure and from and against any continuing obligations and liabilities under any such Guaranties, except for Losses arising from any acts or omissions of a Seller Guarantor. Moreover, Seller and Buyer shall continue to cooperate and use their respective reasonable best efforts to terminate as provided above, or cause Buyer or one of its Affiliates to be substituted in all respects for the Seller Guarantors in respect of, all obligations of the Seller Guarantors under any such Guaranties, and Buyer shall (a) indemnify and hold harmless the Seller Guarantors for any amounts which become payable under such Guaranties after Closing and (b) not and shall not permit the Business, the Sold Companies or their Affiliates to (i) renew or extend the term of or (ii) increase its obligations under, or transfer to another third party, any loan, lease, Contract or other obligation for which any Seller Guarantor is liable under such Guaranty unless the Buyer, the Sold Companies or their respective Affiliates are substituted in all respects for the Seller Guarantors, and the Seller Guarantors are released in respect of all obligations of the Seller Guarantors, under such Guaranties. To the extent that any Seller Guarantor has performance obligations under any such Guaranty, Buyer shall use reasonable best efforts to (x) perform, or cause its Affiliates to perform, such obligations on behalf of such Seller Guarantor or (y) otherwise take such action as reasonably requested by Seller so as to put such Seller Guarantor in the same position as if Buyer or one of its Affiliates, and not such Seller Guarantor, had performed or were performing such obligations, in each case after Closing. To fulfill the obligations of Buyer under this Section 5.13, Buyer shall not be obligated to pay any consent fee or similar payment.

• Release of Guaranty The Note Guaranty of each Guarantor will terminate upon: (i) a sale or other disposition (including by way of consolidation or merger) of the applicable Guarantor or the sale or disposition of all or substantially all the assets of such Guarantor (in each case other than to the Issuer or a Subsidiary) otherwise permitted by this Indenture; or (ii) defeasance or discharge of the Notes, as provided in Article 8, subject to those obligations of the applicable Guarantor that shall survive defeasance or discharge. Upon delivery by the Issuer to the Trustee of an Officer’s Certificate and an Opinion of Counsel to the foregoing effect, the Trustee will execute any documents reasonably requested by the Issuer in writing in order to evidence the release of the applicable Guarantor from its obligations under its Note Guaranty.