Guarantors. (a) The Guarantors as of the Effective Date are set forth on Schedule 10.14 hereto. (b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent. (c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c). (d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and discharge.
Appears in 4 contracts
Sources: Revolving Credit Agreement (Fedex Corp), Delayed Draw Term Loan Agreement (FedEx Freight Holding Company, Inc.), Revolving Credit Agreement (FedEx Freight Holding Company, Inc.)
Guarantors. (a) The Guarantors as If, at any time, any Person (other than the Company) (a “Bank Guarantor”) is required by the terms of the Effective Date are set forth on Schedule 10.14 hereto.Bank Credit Agreement to become a borrower or obligor under, or to otherwise guarantee Indebtedness outstanding under, the Bank Credit Agreement, then (x) the Company shall, not less than 10 Business Days prior to the effectiveness thereof, give written notice (a “Section 9.8 Notice”) of such fact to the holders of the Notes, and (y) the Required Holders shall have the right to require the Company to cause such Bank Guarantor to concurrently (or, with the consent of the Required Holders, thereafter) deliver to each of the holders of the Notes a Guaranty Agreement or joinder agreement in respect of an existing Guaranty Agreement, as appropriate, together with each of the following items:
(bi) Upon any Subsidiary incurringan executed counterpart of such Guaranty Agreement or joinder agreement in respect of an existing Guaranty Agreement, issuing as appropriate;
(ii) a certificate signed by the President, a Vice President or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause another authorized Responsible Officer of such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I Person making representations and warranties to the Guarantee effect of those contained in Sections 5.1, 5.2, 5.6 and 5.7, but with respect to such Person and such Guaranty Agreement, and in the case as applicable;
(iii) a certificate of a Significant Subsidiary, to deliver documentation, Responsible Officer of the Company certifying that at such time and after giving effect to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations Guaranty Agreement or joinder agreement, no Default or Event of Default shall have occurred and be continuing;
(iv) such documents and evidence with respect to such Person as a Guarantor, the Required Holders may reasonably request in order to establish the existence and good standing of such documentation to be in form Person and substance reasonably the authorization of the transactions contemplated by such Guaranty Agreement; and
(v) an opinion of counsel satisfactory to the Administrative Agent.
(c) The Borrower covenants Required Holders to the effect that such Guaranty Agreement has been duly authorized, executed and agrees with delivered and constitutes the Lenders that each Specified Guarantor islegal, valid and shall remain, an entity organized under the laws binding contract and agreement of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, such Person enforceable in accordance with its terms, except as an enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the definition enforcement of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor creditors’ rights generally and be subject by general equitable principles. In addition to the provisions foregoing, if the Bank Credit Agreement shall contain (or be amended to contain) covenants, reporting obligations or events of default related to such Bank Guarantor, then the Company shall deliver an amendment to this Section 10.14(c).
(d) Notwithstanding anything Agreement to add similar covenants, reporting obligations and events of default related to such Bank Guarantor for the contrary contained herein or in any other Loan Document, (i) upon the Consummation benefit of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary holders of the Borrower following Consummation of the Freight Separation) that Notes, and until such time as such amendment is a Guarantor delivered, this Agreement shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents deemed, without any further action required on the part of the Administrative Agentparties hereto, any Lender to be amended to include such additional covenants, reporting obligations and events of default as if set forth herein in full. If the Bank Credit Agreement shall cease to contain such covenants, reporting obligations or any other Person events of default related to such Bank Guarantor, then the Company and (ii) upon the termination or release holders of any Guarantor (without limiting clause (i) abovethe Notes shall deliver an amendment to this Agreement to remove such similar covenants, other than any Specified reporting obligations and events of default related to such Bank Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtednessuntil such time as such amendment is delivered, such Guarantor this Agreement shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement deemed, without any further action required on the part of the Administrative Agent or any Lender. At the request parties hereto, to be amended to exclude such covenants, reporting obligations and sole expense events of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents default as the Borrower shall reasonably request to evidence such release and dischargeif set forth herein in full.
Appears in 3 contracts
Sources: Note Purchase Agreement, Note Purchase Agreement (Unitil Corp), Note Purchase Agreement (Unitil Corp)
Guarantors. (a) The Guarantors as of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower Company shall cause such Subsidiary each of its Subsidiaries (other than the Excluded Subsidiaries) to execute the Guarantee Agreement guarantee pursuant to an Addendum the Multiparty Guaranty or supplement or counterpart thereto in the form of Annex I to the Guarantee Agreement(or, and in the case of a Significant Foreign Subsidiary, any other guarantee agreement requested by the Required Holders) the obligations of the Company evidenced by the Notes and under the other Transaction Documents. In furtherance of the above, after the formation or acquisition of any Subsidiary the Company shall promptly (and in any event upon the earlier of (x) such time as such Subsidiary becomes a guarantor, co-borrower or other obligor under the Credit Agreement and (y) within 45 days after such formation or acquisition): (i) provide written notice to the holders of Notes upon any Person becoming a Subsidiary, setting forth information in reasonable detail describing all of the assets of such Person; (ii) cause such Person to execute a supplement or counterpart to the Multiparty Guaranty and such other Collateral Documents as are necessary for the Company and its Subsidiaries to comply with Section 9.8; (iii) cause the Applicable Pledge Percentage of the issued and outstanding equity interests of such Person and each other Pledge Subsidiary to be delivered to the Collateral Agent (together with undated stock powers signed in blank, if applicable) and pledged to the Collateral Agent pursuant to an appropriate pledge agreement(s) in substantially the form of the Pledge and Security Agreement (or joinder or other supplement thereto) and otherwise in form reasonably acceptable to the Required Holders; and (iv) deliver documentationsuch other documentation as the Required Holders may reasonably request in connection with the foregoing, including, without limitation, certified resolutions and other authority documents of such Person and, to the extent requested by the Administrative AgentRequired Holders, similar favorable opinions of counsel to that described such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above), all in Section 5.01(b) form, content and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance scope reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with Required Holders. Notwithstanding the Lenders that each Specified Guarantor isforegoing, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any no Foreign Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall to execute and deliver the Multiparty Guaranty (or supplement thereto) or such other guarantee agreement if such execution and delivery would cause a Deemed Dividend Problem or a Financial Assistance Problem with respect to such Foreign Subsidiary and, in lieu thereof, the Borrower such documents as Company and the Borrower relevant Subsidiaries shall reasonably request to evidence such release and dischargeprovide the pledge agreements required under this Section 9.7 or Section 9.8.
Appears in 3 contracts
Sources: Senior Secured Note Purchase Agreement (Encore Capital Group Inc), Senior Secured Note Purchase Agreement (Encore Capital Group Inc), Senior Secured Note Purchase Agreement (Encore Capital Group Inc)
Guarantors. No more than 45 days after either (ai) The Guarantors as the designation of a Material Subsidiary of the Effective Date are set forth on Schedule 10.14 hereto.Borrower or (ii) the Borrower, directly or indirectly, acquires a Material Subsidiary:
(bi) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Material Subsidiary to duly execute and deliver to the Guarantee Agreement pursuant to Administrative Agent an Addendum thereto accession agreement in the form of Annex I attached as Schedule N;
(ii) the Borrower shall, and shall cause such Material Subsidiary to, duly execute and deliver to the Guarantee AgreementAdministrative Agent one or more Security Documents in order to charge all of such Material Subsidiary’s Secured Assets as security for its Secured Obligations and to charge all of such Material Subsidiary’s Shares as security for the Secured Obligations of the owner of such Shares;
(iii) the Borrower shall deliver, and in the case of a Significant Subsidiaryor cause to be delivered to, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.:
(cA) The Borrower covenants a duly certified copy of the constating documents and agrees with by-laws or similar documents of such Material Subsidiary;
(B) a certificate of status or good standing for such Material Subsidiary issued by the Lenders that appropriate governmental body or agency of the jurisdiction in which such Material Subsidiary is incorporated, if applicable;
(C) a duly certified copy of the resolution of the board of directors or shareholders of such Material Subsidiary authorizing it to execute, deliver and perform its obligations under each Specified Guarantor is, Finance Document to which such Material Subsidiary is a signatory and shall remain, an entity organized a duly certified copy of the resolution of the board of directors or shareholders (if required under the constating documents or by-laws of any jurisdiction within such Material Subsidiary) of such Material Subsidiary authorizing the United States. For the avoidance pledge of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor issued and be subject outstanding Shares to the provisions of this Section 10.14(c).Administrative Agent and any subsequent disposition thereof by the Administrative Agent in realizing on the security therein constituted by the relevant Security Documents;
(dD) Notwithstanding anything a certificate of an officer of such Material Subsidiary, in such capacity, setting forth specimen signatures of the individuals authorized to sign each Finance Document to which such Material Subsidiary is a signatory;
(E) a Disclosure Certificate signed by an officer of such Material Subsidiary;
(F) share certificates representing all of the issued and outstanding Shares of such Material Subsidiary (to the contrary contained herein extent such Shares are certificated), in each case duly endorsed in blank for transfer or in any other Loan Documentattached to duly executed stock transfers and powers of attorney or as otherwise required under Applicable Law;
(G) an opinion of such Material Subsidiary’s counsel addressed to the Finance Parties and their counsel, (i) upon relating to the Consummation status and capacity of such Material Subsidiary, the due authorization, execution and delivery and the validity and enforceability of the Freight Separationapplicable Finance Documents in, inter alia, the jurisdiction of incorporation of such Material Subsidiary and such other matters as the Administrative Agent may reasonably request; and
(H) requisite information to identify each such Material Subsidiary under the applicable “know your client” legislation, delivered sufficiently in advance for each Lender to complete such identification to their satisfaction;
(iv) the Borrower shall cause such additional Security Documents or amendments to existing Security Documents to be executed and delivered to permit the pledge of FedEx Corporation the Shares of such Material Subsidiary;
(v) the Administrative Agent and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor counsel shall be automatically satisfied, acting reasonably, that all necessary approvals, acknowledgements, directions and unconditionally released consents have been given and discharged from that all its obligations under relevant laws have been complied with in respect of all agreements and transactions referred to in this Agreement; and
(vi) except as otherwise provided in the Guarantee Agreement relevant Security Documents, all documents and instruments shall have been properly registered, recorded and filed in all places which, searches shall have been conducted in all jurisdictions which, and deliveries of all consents, approvals, acknowledgements, undertakings, directions, negotiable documents of title and other documents and instruments to the other Loan Documents without any further action required on Administrative Agent shall have been made which, in the part opinion of the Administrative Agent’s counsel, any Lender acting reasonably, are desirable or any required to make effective the Security and the intended first-ranking priority of such Security (subject to Permitted Liens which have priority by their nature) following the registration and recordation of such documents and instruments; For greater certainty, notwithstanding the aforementioned 45 day period which the Borrower has to cause such Material Subsidiary to, among other Person things, execute and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtednessdeliver a Guarantee, such Material Subsidiary shall, for all purposes of this Agreement, be a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee this Agreement without any further action required on the part of date it became a Material Subsidiary. Furthermore, in the event that the Borrower is working in good faith with the Administrative Agent or any Lender. At to comply with this Section 11.1(q) but is unable to deliver the request and sole expense of documentation required thereby within the Borrower following any such release and dischargerequired time period, the Administrative Agent shall execute and deliver to Agent, in its sole discretion, may extend the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargetime period.
Appears in 3 contracts
Sources: Revolving Credit Facility (Gatos Silver, Inc.), Revolving Credit Facility (Gatos Silver, Inc.), Revolving Credit Facility (Gatos Silver, Inc.)
Guarantors. Such Obligor will take such action, and will cause each of its Subsidiaries to take such action, from time to time as shall be necessary to ensure that all Subsidiaries of Holdings that are Material Subsidiaries (ain each case, other than Foreign Subsidiaries, CFC Holdcos and Domestic Subsidiaries directly or indirectly wholly-owned by Foreign Subsidiaries) The Guarantors as are “Guarantors” hereunder. Without limiting the generality of the Effective Date are set forth on Schedule 10.14 hereto.foregoing, in the event that any Obligor or any of its Subsidiaries shall form or acquire any new Subsidiary that is a Material Subsidiary or any Subsidiary shall become a Material Subsidiary (in each case, other than any Foreign Subsidiary, CFC Holdco or Domestic Subsidiary directly or indirectly wholly-owned by a Foreign Subsidiary), such Obligor and its Subsidiaries concurrently will:
(b1) Upon any cause such new Subsidiary incurringto become a “Guarantor” of this Amended and Restated Note, issuing and a “Grantor” and a “Guarantor” under the Guaranty and Security Agreement, pursuant to a Joinder under the Guaranty and Security Agreement;
(2) take such action or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute take such action (including delivering such shares of stock together with undated transfer powers executed in blank) as shall be necessary to create and perfect valid and enforceable second priority (subject to Permitted Priority Liens) Liens on substantially all of the Guarantee Agreement pursuant to an Addendum thereto personal property of such new Subsidiary as collateral security for the obligations of such new Subsidiary hereunder, other than voting Equity Interests in excess of sixty-five percent (65%) of the form voting Equity Interests of Annex I to the Guarantee Agreement, each Foreign Subsidiary and in the case of a Significant Subsidiary, to deliver documentation, CFC Holdco;
(3) to the extent requested by that the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating parent of such Subsidiary is not a party to the authorization for, execution Guaranty and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be Security Agreement or has not otherwise pledged Equity Interests in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, its Subsidiaries in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation terms of the Freight Separation, each of FedEx Corporation Guaranty and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Security Agreement and this Amended and Restated Note, cause the other Loan Documents without any further action required on the part parent of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall Subsidiary to execute and deliver to the Borrower a pledge agreement in favor of Collateral Agent, in respect of all outstanding issued shares of such Subsidiary; and
(4) deliver such proof of corporate action, incumbency of officers, opinions of counsel and other documents as is consistent with those previously delivered by each Obligor or as Collateral Agent, at the Borrower direction of the Required Holders, shall have reasonably request to evidence such release and dischargerequested.
Appears in 3 contracts
Sources: Credit Agreement (Kadmon Holdings, LLC), Waiver and Consent Agreement (Kadmon Holdings, LLC), Security Agreement (Kadmon Holdings, LLC)
Guarantors. (a) The Guarantors as Within 5 Business days following the date on which any of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon following conditions applies to any Subsidiary incurringor Unconsolidated Affiliate that is not already a Guarantor, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate to execute and deliver an Accession Agreement and the Guarantee items that would have been delivered under subsections (iv) through (viii) and (xiii) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement pursuant to an Addendum thereto Date:
(i) such Person Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of (1) the form Parent; (2) the Borrower; (3) any other Subsidiary of Annex I to the Guarantee AgreementParent, and the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset Value.
(b) The Borrower may request in writing that the Administrative Agent release a Significant SubsidiaryGuarantor from the Guaranty, to deliver documentation, to the extent requested and upon receipt of such written request by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement Guaranty without the need for the execution or delivery of any further action required on the part of the Administrative Agent or other document by any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents other Person so long as the Borrower provides a written certificate together with such written notice certifying that: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a); (iii) no Default or Event of Default shall reasonably request then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to evidence which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and dischargeeffect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents.
Appears in 3 contracts
Sources: Credit Agreement (Regency Centers Lp), Credit Agreement (Regency Centers Lp), Credit Agreement (Regency Centers Lp)
Guarantors. (a) The Guarantors as Within thirty (30) days of any Person becoming a Material Subsidiary (other than an Excluded Subsidiary) after the Agreement Date, the Borrower shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (i) an Accession Agreement executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iv) through (viii), and (xvi) of Section 5.1.(a) if such Subsidiary had been a Material Subsidiary on the Agreement Date; provided, however, promptly (and in any event within 30 days) upon any Excluded Subsidiary ceasing to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date are set forth on Schedule 10.14 heretoor delivering an Accession Agreement pursuant to this Section, as the case may be, such Subsidiary shall comply with the provisions of this Section.
(b) Upon The Borrower may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall release, a Guarantor from the Guaranty so long as: (i) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a); (ii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any Subsidiary incurring, issuing of the covenants contained in Section 9.1.; (iii) the representations and warranties made or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, deemed made by the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto and each other Loan Party in the form Loan Documents to which any of Annex I to them is a party, shall be true and correct on and as of the Guarantee Agreement, date of such release with the same force and in the case effect as if made on and as of a Significant Subsidiary, to deliver documentation, such date except to the extent requested by that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and accurate on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents; and (iv) the Administrative Agent, similar to that described in Section 5.01(b) and Agent shall have received such written request at least 10 Business Days (c) relating to the authorization for, execution and delivery of, and validity of or such Significant Subsidiary’s obligations shorter period as a Guarantor, such documentation to may be in form and substance reasonably satisfactory acceptable to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject prior to the provisions requested date of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of release. Delivery by the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of to the Administrative Agent or of any Lender. At such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and sole expense as of the Borrower following any date of the effectiveness of such release request) are true and discharge, the Administrative Agent shall execute and deliver correct with respect to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargerequest.
Appears in 3 contracts
Sources: Term Loan Agreement (Government Properties Income Trust), Credit Agreement (Government Properties Income Trust), Credit Agreement (CommonWealth REIT)
Guarantors. (a) The Guarantors as of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary each of its Subsidiaries to execute the Guarantee Agreement guarantee pursuant to an Addendum the Guaranty Agreement or supplement thereto in the form of Annex I to the Guarantee Agreement(or, and in the case of a Significant Foreign Subsidiary, any other guarantee agreement requested by the Administrative Agent) the Secured Obligations. In furtherance of the above, the Borrower shall promptly (and in any event within 45 days thereof)
(i) provide written notice to the Administrative Agent and the Lenders upon any Person becoming a Subsidiary, setting forth information in reasonable detail describing all of the assets of such Person, (ii) cause such Person to execute a supplement to the Guaranty Agreement and such other Collateral Documents as are necessary for the Borrower and its Subsidiaries to comply with Section 6.27, (iii) cause the Applicable Pledge Percentage of the issued and outstanding equity interests of such Person to be delivered to the Administrative Agent (together with undated stock powers signed in blank, if applicable) and pledged to the Administrative Agent pursuant to an appropriate pledge agreement(s) in substantially the form of the Pledge and Security Agreement (or joinder or other supplement thereto) and otherwise in form reasonably acceptable to the Administrative Agent and (iv) deliver documentationsuch other documentation as the Administrative Agent may reasonably request in connection with the foregoing, including, without limitation, certified resolutions and other authority documents of such Person and, to the extent requested by the Administrative Agent, similar favorable opinions of counsel to that described such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above), all in Section 5.01(b) form, content and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance scope reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with . Notwithstanding the Lenders that each Specified Guarantor isforegoing, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any no Foreign Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall to execute and deliver the Guaranty Agreement (or supplement thereto) or such other guarantee agreement if such execution and delivery would cause a Deemed Dividend Problem or a Financial Assistance Problem with respect to such Foreign Subsidiary and, in lieu thereof, the Borrower such documents and the relevant Subsidiaries shall provide the pledge agreements required under this Section 6.26 or Section 6.27. Notwithstanding the foregoing, so long as the EBITDA of FlexCrete Building Systems, L.C. for the most recently completed four fiscal quarter period does not exceed one percent (1%) of the Consolidated EBITDA for the Borrower and its Subsidiaries for the same period, the Borrower shall reasonably request not be required to evidence such release and dischargecause FlexCrete Building Systems, L.C. to guarantee the Secured Obligations.
Appears in 2 contracts
Sources: Credit Agreement (Headwaters Inc), Credit Agreement (Headwaters Inc)
Guarantors. (a) The Guarantors as of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary each of its Restricted Subsidiaries (other than the Excluded Subsidiaries, Immaterial Subsidiaries and each member of the Propel Group) to execute the Guarantee Agreement guarantee pursuant to an Addendum the Guaranty Agreement or supplement thereto in the form of Annex I to the Guarantee Agreement(or, and in the case of a Significant Foreign Subsidiary, any other guaranty agreement requested by the Administrative Agent) the Secured Obligations. In furtherance of the above, after the formation or acquisition of any Restricted Subsidiary or a Subsidiary Redesignation, the Borrower shall promptly (and in any event upon the earlier of (x) such time as such Restricted Subsidiary becomes a guarantor, co-borrower or other obligor under the Prudential Financing and (y) within 45 days after such formation or acquisition or Subsidiary Redesignation (with any such time limit permitted to be extended by the Collateral Agent in its reasonable discretion))
(i) provide written notice to the Administrative Agent and the Lenders upon any Person becoming a Restricted Subsidiary, setting forth information in reasonable detail describing all of the assets of such Person, (ii) cause such Person (other than any member of the Propel Group and any Immaterial Subsidiary) to execute a supplement to the Guaranty Agreement and such other Collateral Documents as are necessary for the Borrower and its Subsidiaries to comply with Section 5.11, (iii) cause the Applicable Pledge Percentage of the issued and outstanding equity interests of such Person and each other Pledge Subsidiary to be delivered to the Collateral Agent (together with undated stock powers signed in blank, if applicable) and pledged to the Collateral Agent pursuant to an appropriate pledge agreement(s) in substantially the form of the Pledge and Security Agreement (or joinder or other supplement thereto) and otherwise in form reasonably acceptable to the Administrative Agent and (iv) deliver documentationsuch other documentation as the Administrative Agent may reasonably request in connection with the foregoing, including, without limitation, certified resolutions and other authority documents of such Person and, to the extent requested by the Administrative Agent, similar favorable opinions of counsel to that described such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above), all in Section 5.01(b) form, content and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance scope reasonably satisfactory to the Administrative Agent.
. Notwithstanding the foregoing, no Foreign Subsidiary shall be required to execute and deliver the Guaranty Agreement (cor supplement thereto) The or such other guaranty agreement if such execution and delivery would cause a Deemed Dividend Problem or a Financial Assistance Problem with respect to such Foreign Subsidiary and, in lieu thereof, the Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and relevant Restricted Subsidiaries shall remain, an entity organized provide the pledge agreements required under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c5.10 or Section 5.11. Notwithstanding the foregoing, the Borrower will be required to comply with this Section (x) shall not prohibit with respect to any Subsidiaries of Propel Acquisition LLC to the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to extent that the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon Propel Indebtedness no longer prohibits the Consummation guaranty of the Freight Separation, each Obligations or the granting of FedEx Corporation security in respect thereto and its subsidiaries (but not, for y) with respect to any Immaterial Subsidiary if it ceases to be an Immaterial Subsidiary under the avoidance of doubt, any Subsidiary terms of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargedefinition thereof.
Appears in 2 contracts
Sources: Credit Agreement (Encore Capital Group Inc), Credit Agreement (Encore Capital Group Inc)
Guarantors. (a) The Guarantors Borrower shall (within the time period specified in the following subsection (b), if applicable) cause Spirit REIT and each Material Subsidiary (other than an Excluded Subsidiary) that meets the following conditions to be a party to the Guaranty: (i) such Material Subsidiary becomes obligated in respect of any Indebtedness for borrowed money or Capitalized Lease Obligations of Spirit REIT or the Borrower or (ii) (A) such Material Subsidiary owns an Unencumbered Pool Asset and (B) such Material Subsidiary, or any Subsidiary that directly or indirectly owns any Equity Interest in such Material Subsidiary, has incurred, acquired or suffered to exist any Indebtedness for borrowed money or Capitalized Lease Obligations other than Nonrecourse Indebtedness; provided that one or more Subsidiaries that have, or have a parent company that has, Indebtedness described above in this clause (B) shall not be required to be a party to the Guaranty so long as the aggregate amount of the Effective Date are set forth on Schedule 10.14 heretoall such Indebtedness of all such Subsidiaries does not exceed $25,000,000.
(b) Upon Within five (5) Business Days after any Person becomes a Subsidiary incurringthat is required to be a party to the Guaranty pursuant to the foregoing subsection (a) (whether as a result of the acquisition or creation thereof, issuing such Person ceasing to be an Excluded Subsidiary, the addition of a Property to the Unencumbered Pool that is owned by such Person or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterotherwise), the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I deliver to the Guarantee Agreement, and in Administrative Agent each of the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be following in form and substance reasonably satisfactory to the Administrative Agent: (i) an Accession Agreement executed by such Person and (ii) the items that would have been delivered under subsections (iv) through (viii) and (xvii) of Section 6.1(a) and under Section 6.1(e) if such Person had been a Material Subsidiary on the Agreement Date.
(c) The Borrower covenants and agrees with If any Person that is a party to the Lenders that each Specified Guaranty (other than Spirit REIT) ceases to be required to be a Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with subsection (a) above, the definition of “Specified Guarantor”, any Borrower may request that such Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, be released from the Guaranty. Such release shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, granted so long as (i) upon the Consummation no Default or Event of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person Default exists and (ii) upon the termination or release of any Guarantor (without limiting clause (i) aboveall representations and warranties continue to be accurate in all material respects, other than any Specified Guarantor) from its incurrenceexcept to extent such representations and warranties are qualified by materiality, issuance in which case such representations and guarantee of any and warranties shall continue to be accurate in all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargerespects.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Spirit Realty, L.P.), Term Loan Agreement (Spirit Realty, L.P.)
Guarantors. (a) The Guarantors With respect to any owner of any Secured Pool Property, as of the date such Secured Pool Property shall be included in the calculation of Maximum Loan Availability, and from and after the Collateral Release Event, within five (5) Business Days of (x) with respect to any Subsidiary of the Parent (other than the Borrower) that owns, directly or indirectly, any Equity Interests of any owner of any Unencumbered Pool Property, the Collateral Release Event (or if later, the date such Subsidiary acquires such Equity Interests) and (y) any other Person becoming a Material Subsidiary (other than an Excluded Subsidiary) after the Agreement Date, the Borrower shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (i) an Accession Agreement executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iv) through (viii) and (xviii) of Section 6.1(a) and under Section 6.1(e) if such Subsidiary had been a Material Subsidiary on the Agreement Date; provided, however, promptly (and in any event within five (5) Business Days) upon any Excluded Subsidiary ceasing to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date are set forth on Schedule 10.14 heretoor delivering an Accession Agreement pursuant to this Section, as the case may be, such Subsidiary shall comply with the provisions of this Section.
(b) Upon The Borrower may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall release, a Guarantor from the Guaranty so long as: (i) such Guarantor owns no Pool Property, nor any direct or indirect Equity Interest in any Subsidiary incurringthat owns a Pool Property; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, issuing including without limitation, a Default or guaranteeing Event of Default resulting from a violation of any debt securities of the covenants contained in Section 10.1; (iv) the representations and warranties made or any other Material Indebtedness, within thirty (30) days thereafter, deemed made by the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto and each other Loan Party in the form Loan Documents to which any of Annex I to the Guarantee Agreementthem is a party, shall be true and correct in all material respects (except in the case of a Significant Subsidiaryrepresentation or warranty qualified by materiality, to deliver documentation, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent requested that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (v) the Administrative Agent, similar to that described in Section 5.01(bAgent shall have received such written request at least ten (10) and Business Days (c) relating to the authorization for, execution and delivery of, and validity of or such Significant Subsidiary’s obligations shorter period as a Guarantor, such documentation to may be in form and substance reasonably satisfactory acceptable to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject prior to the provisions requested date of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of release. Delivery by the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of to the Administrative Agent or of any Lender. At such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and sole expense as of the Borrower following any date of the effectiveness of such release request) are true and discharge, the Administrative Agent shall execute and deliver correct with respect to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargerequest.
Appears in 2 contracts
Sources: Credit Agreement (Tier Reit Inc), Credit Agreement (Tier Reit Inc)
Guarantors. (a) The Guarantors as Company will cause any Subsidiary which becomes obligated for, or otherwise guarantees, Indebtedness in respect of the Effective Date are set forth on Schedule 10.14 heretoCredit Agreement, to deliver to each of the holders of the Notes (concurrently with the incurrence of any such obligation) the following items:
(i) a duly executed Joinder to the Subsidiary Guaranty in the form attached as Exhibit 9.9;
(ii) a certificate signed by an authorized Responsible Officer of such Subsidiary making representations and warranties to the effect of those contained in Section 5 which the Guarantors provided at Closing with respect to such Subsidiary and the Subsidiary Guaranty, as applicable; and
(iii) an opinion of counsel (who may be in-house counsel for the Company) addressed to each of the holders of the Notes satisfactory to the Required Holders, to the effect that the Subsidiary Guaranty by such Person has been duly authorized, executed and delivered and that the Subsidiary Guaranty constitutes the legal, valid and binding contract and agreement of such Person enforceable in accordance with its terms, except as an enforcement of such terms may be limited by bankruptcy, insolvency, fraudulent conveyance and similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles.
(b) Upon The holders of the Notes agree to discharge and release any Guarantor from the Subsidiary incurringGuaranty upon the written request of the Company, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to provided that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a such Guarantor shall be automatically and unconditionally has been released and discharged from all its obligations (or will be released and discharged concurrently with the release of such Guarantor under the Guarantee Subsidiary Guaranty) as an obligor and guarantor under and in respect of the Credit Agreement and the other Loan Documents without any further action required on Company so certifies to the part holders of the Administrative AgentNotes in a certificate of a Responsible Officer, any Lender or any other Person and (ii) upon at the termination or release time of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent Company shall execute and deliver a certificate of a Responsible Officer to the Borrower holders of the Notes stating that no Default or Event of Default exists, and (iii) if any fee or other form of consideration (including but not limited to the granting of a security interest in collateral) is given to any holder of Indebtedness of the Company for the purpose of such documents as release, holders of the Borrower Notes shall reasonably request to evidence such release and dischargereceive equivalent consideration.
Appears in 2 contracts
Sources: Note Purchase Agreement (Vectren Utility Holdings Inc), Note Purchase Agreement (Vectren Corp)
Guarantors. Such Obligor will take such action, and will cause each of its Subsidiaries to take such action, from time to time as shall be necessary to ensure that all Subsidiaries of Holdings that are Material Subsidiaries (ain each case, other than Foreign Subsidiaries, CFC Holdcos and Domestic Subsidiaries directly or indirectly wholly-owned by Foreign Subsidiaries) The Guarantors as are “Guarantors” hereunder. Without limiting the generality of the Effective Date are set forth on Schedule 10.14 hereto.foregoing, in the event that any Obligor or any of its Subsidiaries shall form or acquire any new Subsidiary that is a Material Subsidiary or any Subsidiary shall become a Material Subsidiary (in each case, other than any Foreign Subsidiary, CFC Holdco or Domestic Subsidiary directly or indirectly wholly-owned by a Foreign Subsidiary), such Obligor and its Subsidiaries concurrently will:
(bi) Upon any cause such new Subsidiary incurringto become a “Guarantor” hereunder, issuing and a “Grantor” under the Security Agreement, pursuant to a Guarantee Assumption Agreement;
(ii) take such action or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute take such action (including delivering such shares of stock together with undated transfer powers executed in blank) as shall be necessary to create and perfect valid and enforceable first priority (subject to Permitted Priority Liens) Liens on substantially all of the Guarantee Agreement pursuant to an Addendum thereto personal property of such new Subsidiary as collateral security for the obligations of such new Subsidiary hereunder, other than voting Equity Interests in excess of sixty-five percent (65%) of the form voting Equity Interests of Annex I to the Guarantee Agreement, each Foreign Subsidiary and in the case of a Significant Subsidiary, to deliver documentation, CFC Holdco;
(iii) to the extent requested by that the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating parent of such Subsidiary is not a party to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be Security Agreement or has not otherwise pledged Equity Interests in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, its Subsidiaries in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation terms of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Security Agreement and this Agreement, cause the other Loan Documents without any further action required on the part parent of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall Subsidiary to execute and deliver to a pledge agreement in favor of Collateral Representative for the Borrower benefit of Secured Parties, in respect of all outstanding issued shares of such Subsidiary; and
(iv) deliver such proof of corporate action, incumbency of officers, opinions of counsel and other documents as the Borrower is consistent with those delivered by each Obligor pursuant to Section 6.01 or as Majority Lenders shall have reasonably request to evidence such release and dischargerequested.
Appears in 2 contracts
Sources: Credit Agreement (Kadmon Holdings, LLC), Credit Agreement (Kadmon Holdings, LLC)
Guarantors. (a) The Guarantors as Within fifteen (15) Business Days after the date of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterPerson becoming a Required Guarantor, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I deliver to the Guarantee Agreement, and in Administrative Agent each of the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be following in form and substance reasonably satisfactory to the Administrative Agent.
: (cA)(i) The Borrower covenants and agrees with respect to any owner of the Lenders that each Specified Guarantor isEquity Interests of the Borrower, a joinder or amendment to the Parent Guaranty to unconditionally guaranty the Guaranteed Obligations hereunder in their entirety, and shall remain, (ii) with respect to any such Subsidiary an entity organized Accession Agreement executed by such Required Guarantor and (B) the items that would have been delivered under subsections (vi) through (xiii) of Section 6.1.(a) and under Section 6.1.(e) if such Person had been a Required Guarantor on the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified GuarantorAgreement Date; provided, thathowever, promptly (and in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or event within fifteen (15) Business Days) upon any Excluded Subsidiary ceasing to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement pursuant to this Section, as the case may be, such Subsidiary shall comply with the applicable provisions of this Section 10.14(c)Section.
(db) Notwithstanding anything to the contrary contained herein or The Borrower may request in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) writing that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the release, and upon receipt of such request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents release any Guarantor that is no longer a Required Guarantor, so long as (i) the Borrower shall certify in writing that no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 10.1. (as evidenced by a Compliance Certificate showing calculation in reasonable detail of such covenants on a pro forma basis after giving effect to such release); (ii) the Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be reasonably acceptable to the Administrative Agent) prior to the requested date of release; and (iii) at least 100 Properties shall be Eligible Properties included in the calculation of Unencumbered Asset Value after giving effect to such release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to evidence such release and dischargerequest.
Appears in 2 contracts
Sources: Term Loan Agreement (NETSTREIT Corp.), Credit Agreement (NETSTREIT Corp.)
Guarantors. (a) The Company will (x) cause each of its Subsidiaries that guarantees or otherwise becomes liable at any time, whether as a borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under any Material Credit Facility (a “Subsidiary Guarantor”) and (y) use commercially reasonable efforts to cause any other entity that is not a Subsidiary that guarantees or otherwise becomes liable at any time, whether as a borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under a Material Credit Facility (a “Non-Subsidiary Guarantor”; together with any other Non-Subsidiary Guarantors and any Subsidiary Guarantors, each a “Guarantor”) to concurrently therewith (or, if prior to the Closing, at Closing):
(i) enter into an agreement in form and substance satisfactory to the Required Holders providing for the guaranty by such Guarantor, on a joint and several basis with all other such Guarantors, of (x) the prompt payment in full when due of all amounts payable by the Company pursuant to the Notes (whether for principal, interest, Make-Whole Amount or otherwise) and this Agreement, including all indemnities, fees and expenses payable by the Company thereunder and (y) the prompt, full and faithful performance, observance and discharge by the Company of each and every covenant, agreement, undertaking and provision required pursuant to the Notes or this Agreement to be performed, observed or discharged by it (a “NPA Guaranty”); and Public Service Company of New Mexico Note Purchase Agreement
(ii) deliver the following to each Purchaser and holder of a Note:
(A) an executed counterpart of such NPA Guaranty;
(B) a certificate signed by an authorized responsible officer of such Guarantor containing representations and warranties on behalf of such Guarantor to the same effect, mutatis mutandis, as those contained in Sections 5.1, 5.2, 5.6, 5.7 and 5.16 of this Agreement (but with respect to such Guarantor and such NPA Guaranty rather than the Company);
(C) all documents as may be reasonably requested by the Required Holders to evidence the due organization, continuing existence and, where applicable, good standing of such Guarantor and the due authorization by all requisite action on the part of such Guarantor of the Effective Date are set forth on Schedule 10.14 heretoexecution and delivery of such NPA Guaranty and the performance by such Guarantor of its obligations thereunder; and
(D) an opinion of counsel reasonably satisfactory to the Required Holders covering such matters relating to such Guarantor and such NPA Guaranty as the Required Holders may reasonably request.
(b) Upon At the election of the Company and by written notice to each holder of Notes, any Subsidiary incurring, issuing Guarantor may be discharged from all of its obligations and liabilities under its NPA Guaranty and shall be automatically released from its obligations thereunder without the need for the execution or guaranteeing any debt securities or delivery of any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested document by the Administrative Agentholders, similar to provided that described (i) if such Guarantor is a guarantor or is otherwise liable for or in Section 5.01(brespect of any Material Credit Facility, then such Guarantor has been released and discharged (or will be released and discharged concurrently with the release of such Guarantor under its NPA Guaranty) and under such Material Credit Facility, (cii) relating to at the authorization for, execution and delivery time of, and validity of such Significant Subsidiary’s obligations as a Guarantorafter giving effect to, such documentation release and discharge, no Default or Event of Default shall be existing, (iii) no amount is then due and payable under such NPA Guaranty, (iv) if in connection with such Guarantor being released and discharged under any Material Credit Facility, any fee or other form of consideration is given to be in form any holder of Indebtedness under such Material Credit Facility for such release, the holders of the Notes shall receive equivalent consideration substantially concurrently therewith and substance reasonably satisfactory (v) each holder shall have received a certificate of a Responsible Officer certifying as to the Administrative Agentmatters set forth in clauses (i) through (iv).
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation failure of a Specified Guarantor; provided, that, in accordance Non-Subsidiary Guarantor to comply with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged Section 9.7(a)(i) or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any will constitute non-compliance by a Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargewith this Section 9.7.
Appears in 2 contracts
Sources: Note Purchase Agreement (Public Service Co of New Mexico), Note Purchase Agreement (Public Service Co of New Mexico)
Guarantors. (a) The Guarantors as of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) Company shall not prohibit the Freight Separation permit any Guarantor to consolidate with or any merger merge with or consolidation into, dissolve or liquidate voluntarily into, or (directly, or indirectly through one or more of a Specified Guarantor; providedits Subsidiaries) sell, thatlease or otherwise Dispose, in accordance with the definition one transaction or a series of “Specified Guarantor”transactions, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its the consolidated assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject (other than to the provisions of this Section 10.14(c).Company or another Guarantor) (a “Guarantor Business Combination Event” together with a Company Business Combination Event, a “Business Combination Event”) unless:
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation resulting, surviving or transferee Person (the “Successor Guarantor”) either (x) is the Guarantor or (y) if not the Guarantor, is a corporation duly organized and existing under the laws of the Freight Separationjurisdiction of the Company or any of the Guarantors that expressly assumes (by executing and delivering to the Trustee, each at or before the effective time of FedEx Corporation such Guarantor Business Combination Event, a supplemental indenture pursuant to Section 8.01(B)) all of such Guarantor’s obligations under this Indenture, the Notes Security Documents to which it is a party, the Notes and its subsidiaries Guarantee (but notincluding, for the avoidance of doubt, the obligation to pay Additional Amounts pursuant to Section 3.05);
(ii) immediately after giving effect to such Guarantor Business Combination Event, no Default or Event of Default will have occurred and be continuing; and
(iii) before the effective time of any Subsidiary of Guarantor Business Combination Event, the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement Company and the other Loan Documents without any further action required on Guarantor, as applicable, will deliver to the part Trustee an Officer’s Certificate and Opinion of Counsel, each stating that (i) such Guarantor Business Combination Event (and, if applicable, the Administrative Agent, any Lender or any other Person related supplemental indenture) comply with Section 6.01(B); and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, conditions precedent to such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargeBusiness Combination Event provided in this Indenture have been satisfied.
Appears in 2 contracts
Sources: Indenture (Maxeon Solar Technologies, Ltd.), Indenture (Maxeon Rooster HoldCo, Ltd.)
Guarantors. (a) The Guarantors as Contemporaneously with the incorporation, formation or acquisition of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities Additional Guarantor or any other Material Indebtedness, within thirty (30) days thereafterAdditional Sponsor Group Member that is not yet a Guarantor, the Borrower shall cause such Subsidiary entity to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in comply with this Section 5.01(b10.3(w) and (c) relating upon compliance with this Section 10.3(w), such entity shall be deemed to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as constitute a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, cause such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall entity to duly execute and deliver to the Borrower such documents as applicable Collateral Agent, subject to Section 14.13, a Guarantee;
(ii) the Borrower shall deliver, or cause to be delivered to, the Administrative Agent, in form and substance satisfactory to the Administrative Agent and the applicable Collateral Agent:
(A) a duly certified copy of the constating documents of such entity;
(B) a certificate of status or good standing for such entity issued by the appropriate governmental body or agency of the jurisdiction in which such entity is incorporated or formed (to the extent available in such jurisdiction);
(C) a duly certified copy of the resolution of the board of directors of such entity authorizing it to execute, deliver and perform its obligations under each Credit Document to which such entity is a party and a duly certified copy of the resolution of the board of directors (if required under the constating documents of such entity) of such entity authorizing the pledge of all of its issued and outstanding Shares to the applicable Collateral Agent and any subsequent disposition thereof by the applicable Collateral Agent in realizing on the security therein constituted by the relevant Security Documents;
(D) a certificate of an officer of such entity, in such capacity, setting forth specimen signatures of the individuals authorized to sign the Credit Documents to which such entity is a party;
(E) in the case of Additional Guarantors that are Subsidiaries of the Borrower only, share certificates representing all of the issued and outstanding Shares of such entity, in each case duly endorsed in blank for transfer or attached to duly executed stock transfers and powers of attorney;
(F) in the case of Additional Sponsor Group Members only, share certificates representing all of the issued and outstanding Shares of the Borrower owned by such Additional Sponsor Group Member, in each case duly endorsed in blank for transfer or attached to duly executed stock transfers and powers of attorney;
(G) copies of insurance policies, riders and endorsements, insurance binders, certificates of insurance and statements of coverage with respect to the insurance referred to in Section 10.3(c);
(H) an opinion of such entity's counsel addressed to the Lenders, the Administrative Agent, the Collateral Agents and its counsel, relating to, inter alia, (i) the status and capacity of such entity, (ii) the due authorization, execution and delivery of the Finance Documents to which such entity is a party, (iii) the validity and enforceability of the Finance Documents to which such Obligor is a party in the jurisdiction of the governing law of the applicable Finance Documents, (iv) no breach of law or constating documents, (v) receipt of all authorizations and consents required by or from any Official Body in connection with the execution, delivery and performance of the Finance Documents to which such entity is a party and the transactions contemplated thereby, (vi) the creation of a valid security interest under each Security Document to which such entity is a party, (vii) the perfection of the security interests created under the Security Documents by registration or control, and (viii) such other matters as the Administrative Agent may reasonably request request; in the jurisdiction of incorporation of such entity and in the Province of British Columbia;
(I) in the case of Additional Guarantors, the Borrower shall cause such additional Security Documents or amendments to evidence existing Security Documents to be executed and delivered to permit the grant to the Collateral Agents, or any one of them, a first priority Lien on the Secured Assets (subject only to Permitted Liens) as continuing collateral security for the payment and performance of the Secured Obligations of such release Additional Guarantor and dischargethe pledge of the Shares of such entity (together with all necessary recordings and filings in all necessary public offices, and all other necessary and appropriate action, so that each such additional Security Document creates a perfected Lien on all right, title and interest of such Additional Guarantor in the Secured Assets covered thereby, prior and superior to all other Liens other than Permitted Liens and all necessary consents to the creation, perfection and enforcement of such Liens, if required, have been obtained from each of the parties to the Material Project Documents, as applicable);
(J) in the case of Additional Sponsor Group Members, the Borrower shall cause such additional Security Documents or amendments to existing Security Documents to be executed and delivered to permit the pledge of the Shares of the Borrower owned by such Additional Sponsor Group Member (together with all necessary recordings and filings in all necessary public offices, and all other necessary and appropriate action, so that each such additional Security Document creates a perfected Lien on all right, title and interest of such Additional Sponsor Group Member in the Secured Assets covered thereby, prior and superior to all other Liens other than Permitted Liens and all necessary consents to the creation, perfection and enforcement of such Liens, if required, have been obtained from each of the parties to the Material Project Documents, as applicable);
(K) the Administrative Agent and its counsel shall be satisfied, acting reasonably, that all necessary Authorizations, acknowledgements and directions have been given or obtained, as applicable, and that all Applicable Laws have been complied with in respect of all agreements and transactions referred to herein;
(L) if requested by any Lender, the Borrower shall cause any such entity that qualifies as a "legal entity customer" under the Beneficial Ownership Regulation and has not previously delivered a Beneficial Ownership Certification to deliver a Beneficial Ownership Certification to the Administrative Agent and the Lenders; and
(M) all documents and instruments shall have been properly registered, recorded and filed in all places which, searches shall have been conducted in all jurisdictions which, and deliveries of all consents, approvals, acknowledgements, undertakings, directions, negotiable documents of title and other documents and instruments to the Administrative Agent shall have been made which, in the opinion of the Administrative Agent's counsel, acting reasonably, are desirable or required to make effective the Security created or intended to be created pursuant to this Section 10.3(w) and to ensure the perfection and the intended first-ranking priority of such Security (subject to Permitted Liens).
Appears in 2 contracts
Sources: Credit Agreement (Endeavour Silver Corp), Credit Agreement (Endeavour Silver Corp)
Guarantors. Such Obligor will take such action, and will cause each of its Subsidiaries to take such action, from time to time as shall be necessary to ensure that all Subsidiaries of Holdings that are Material Subsidiaries (ain each case, other than Foreign Subsidiaries, CFC Holdcos and Domestic Subsidiaries directly or indirectly wholly-owned by Foreign Subsidiaries) The Guarantors as are “Guarantors” hereunder. Without limiting the generality of the Effective Date are set forth on Schedule 10.14 hereto.foregoing, in the event that any Obligor or any of its Subsidiaries shall form or acquire any new Subsidiary that is a Material Subsidiary, or any Subsidiary shall become a Material Subsidiary (in each case, other than any Foreign Subsidiary, CFC Holdco or Domestic Subsidiary directly or indirectly wholly-owned by a Foreign Subsidiary), such Obligor and its Subsidiaries concurrently will:
(bi) Upon any cause such new Subsidiary incurringto become a “Guarantor” hereunder, issuing and a “Grantor” under the Security Agreement, pursuant to a Guarantee Assumption Agreement;
(ii) take such action or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute take such action (including delivering such shares of stock together with undated transfer powers executed in blank) as shall be necessary to create and perfect valid and enforceable first priority (subject to Permitted Priority Liens) Liens on substantially all of the Guarantee Agreement pursuant to an Addendum thereto personal property of such new Subsidiary as collateral security for the obligations of such new Subsidiary hereunder, other than voting Equity Interests in excess of sixty-five percent (65%) of the form voting Equity Interests of Annex I to the Guarantee Agreement, each Foreign Subsidiary and in the case of a Significant Subsidiary, to deliver documentation, CFC Holdco;
(iii) to the extent requested by that the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating parent of such Subsidiary is not a party to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be Security Agreement or has not otherwise pledged Equity Interests in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, its Subsidiaries in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation terms of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Security Agreement and this Agreement, cause the other Loan Documents without any further action required on the part parent of the such Subsidiary to execute and deliver a pledge agreement in favor of Administrative Agent, any Lender in respect of all outstanding issued shares of such Subsidiary; and
(iv) deliver such proof of corporate action, incumbency of officers, opinions of counsel and other documents as is consistent with those delivered by each Obligor pursuant to Section 6.01 or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the as Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall have reasonably request to evidence such release and dischargerequested.
Appears in 2 contracts
Sources: Senior Secured Convertible Credit Agreement (Kadmon Holdings, LLC), Senior Secured Convertible Credit Agreement (Kadmon Holdings, LLC)
Guarantors. No Guarantor (a) The Guarantors as of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the than a Guarantor whose Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation is to be released in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees accordance with the Lenders that each Specified terms of Section 3.03) shall consolidate with or merge with or into another Person, whether or not such Person is affiliated with such Guarantor isand whether or not such Guarantor is the Surviving Person, unless (i) the Surviving Person (if other than such Guarantor) is a corporation organized and shall remain, an entity organized validly existing under the laws of any jurisdiction within the United States. For , any State thereof or the avoidance District of doubtColumbia or, if any such Guarantor was a Foreign Restricted Subsidiary, under the laws of the United States of America or any state thereof or the District of Columbia or the jurisdiction under which the Foreign Restricted Subsidiary was organized; (ii) the Surviving Person (if other than such Guarantor) expressly assumes by supplemental indenture all the obligations of such Guarantor under its Guarantees of the Senior Subordinated Notes and the performance and observance of every covenant of the Indenture to be performed or observed by such Guarantor; (iii) at the time of and immediately after such Disposition, no Default or Event of Default shall have occurred and be continuing; and (iv) immediately after giving effect to any such transaction involving the Incurrence by such Guarantor, directly or indirectly, of additional Indebtedness (and treating any Indebtedness not previously an obligation of such Guarantor in connection with or as a result of such transaction as having been Incurred at the time of such transaction), the Borrower could Incur, on a pro forma basis after giving effect to such transaction as if it had occurred at the beginning the latest fiscal quarter for which consolidated financial statements of the Borrower are available, at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) under the Consolidated Coverage Ratio of the first paragraph of Section 6.01(c); provided, however, that this Section 10.14(c) paragraph shall not prohibit the Freight Separation or any be a condition to a merger or consolidation of a Specified Guarantor; providedGuarantor if such merger or consolidation only involves the Borrower and/or one or more other Guarantors. Notwithstanding the foregoing, that, nothing in accordance this covenant shall prohibit the consolidation or merger with or into or the definition sale of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its the assets are sold, transferred or disposed, shall become properties of a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Restricted Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and discharge.
Appears in 2 contracts
Sources: Senior Subordinated Note Purchase Agreement (Polymer Group Inc), Senior Subordinated Note Purchase Agreement (Matlinpatterson Global Opportunities Partners Lp)
Guarantors. (a) The Guarantors Within ten (10) Business Days (or such later date as may be agreed to by the Agent in its reasonable discretion) following the date on which any of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon following conditions first applies to any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterof the Borrower that is not already a Guarantor, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I deliver to the Guarantee Agreement, and in Agent each of the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be following in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, : (i) upon a Guaranty, substantially in the Consummation form of Exhibit H, or, if such Guaranty has been previously executed, an Accession Agreement (or if at any such time all Guarantors have been released from the Guaranty and as a result of such releases the Guaranty has terminated, a Guaranty substantially in the form of the Freight SeparationExhibit H) executed by such Subsidiary, and (ii) the items that would have been delivered under Section 5.1.(a)(iv) through (a)(viii) and Section 5.1.(a)(xii) had any such Subsidiary been a Guarantor on the Agreement Date, with each reference to “Agreement Date” in such subsections deemed to be a reference to the date the Accession Agreement referenced in the immediately preceding clause (i) is delivered to the Agent:
(A) such Subsidiary Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, Borrower or any Subsidiary of the Borrower following Consummation (except for (i) Guarantees by LCIF or Net Lease Strategic Assets Fund, L.P. of the Freight Separationcustomary exceptions to nonrecourse indebtedness of Subsidiaries of LCIF or Net Lease Strategic Assets Fund, L.P., respectively, for fraud, misapplication of funds, environmental indemnities and other similar events, and other similar exceptions to nonrecourse liability (but not exceptions relating to voluntary bankruptcy, collusive involuntary bankruptcy, insolvency, or receivership or other similar events) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without or (ii) any further action required on the part of the Administrative Agent, any Lender or any other Person Permitted Intercompany Indebtedness); or
(B) (i) such Subsidiary owns an Eligible Unencumbered Property and (ii) such Subsidiary (or any other Subsidiary that directly or indirectly owns an Equity Interest in such Subsidiary) has incurred, acquired or suffered to exist any Recourse Indebtedness (other than Permitted Intercompany Indebtedness that is Recourse Indebtedness); or
(C) LCIF or Net Lease Strategic Assets Fund, L.P. has incurred, acquired or suffered to exist any Recourse Indebtedness other than Permitted Intercompany Indebtedness that is Recourse Indebtedness or Guarantees by LCIF or Net Lease Strategic Assets Fund, L.P. permitted under (A) above with respect to which no claim has been made.
(b) The Borrower may request in writing that the Agent release, and upon receipt of such request the termination or release of any Agent shall release, a Guarantor (without limiting clause from the Guaranty so long as: (i) abovesuch Guarantor is not required to be a party to the Guaranty under the immediately preceding subsection (a) (including by reason of a transfer of all of the Equity Interests of a Guarantor permitted by Section 9.7. that results in such Guarantor no longer being a Subsidiary); (ii) no Default or Event of Default shall then be in existence or would occur as a result of such release, other than any Specified Guarantor) including without limitation, a Default or Event of Default resulting from its incurrence, issuance and guarantee a violation of any of the covenants contained in Section 9.1.; (iii) the representations and all debt securities warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any other Material Indebtednessof them is a party, such Guarantor shall be automatically true and unconditionally released correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and discharged from correct in all its obligations respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances not prohibited under the Guarantee Agreement without Loan Documents and (iv) the Agent shall have received such written request at least 5 Business Days (or such shorter period as may be acceptable to the Agent) prior to the requested date of release. Delivery by the Borrower to the Agent of any further action required on such request shall constitute a representation by the part Borrower that the matters set forth in the preceding sentence (both as of the Administrative Agent or any Lender. At date of the giving of such request and sole expense as of the Borrower following any date of the effectiveness of such release request) are true and discharge, the Administrative Agent shall execute and deliver correct with respect to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargerequest.
Appears in 2 contracts
Sources: Credit Agreement (LXP Industrial Trust), Credit Agreement (Lexington Realty Trust)
Guarantors. Within fifteen (a15) The Guarantors as Business Days after the date of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterPerson becoming a Required Guarantor, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I deliver to the Guarantee Agreement, and in Administrative Agent each of the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be following in form and substance reasonably satisfactory to the Administrative Agent.
: (cA)(i) The Borrower covenants and agrees with respect to any owner of the Lenders that each Specified Guarantor isEquity Interests of the Borrower, a joinder or amendment to the Parent Guaranty to unconditionally guaranty the Guaranteed Obligations hereunder in their entirety, and shall remain(ii) with respect to any such Subsidiary an Accession Agreement executed by such Required Guarantor, (B) the items that would have been delivered under subsections (vi) through (xiii) of Section 6.1.(a) and under Section 6.1.(f) if such Person had been a Required Guarantor on the Agreement Date and (C) prior to the Collateral Release Date, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantorexecuted Pledge Joinder Agreement; provided, thathowever, promptly (and in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or event within fifteen (15) Business Days) upon any Excluded Subsidiary ceasing to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement pursuant to this Section, as the case may be, such Subsidiary shall comply with the applicable provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or Section. The Borrower may request in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) writing that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the release, and upon receipt of such request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents release any Guarantor that is no longer a Required Guarantor, so long as (i) the Borrower shall reasonably request certify in writing that no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 10.1. (as evidenced by a Compliance Certificate showing calculation in reasonable detail of such covenants on a pro forma basis after giving effect to evidence such release); (ii) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and dischargeeffect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date); (iii) the Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be reasonably acceptable to the Administrative Agent) prior to the requested date of release; and (iv) at least 75 Properties shall be Eligible Properties included in the calculation of Unencumbered Asset Value after giving effect to such release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request. The Borrower may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall release, a Subsidiary Guarantor from the Pledge Agreement so long as: (i) such Subsidiary Guarantor owns no Eligible Property, nor any direct Equity Interest in any Subsidiary that owns an Eligible Property; (ii) such Subsidiary Guarantor is not otherwise required to be a party to the Pledge Agreement under the immediately preceding subsection (a), (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including, without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 10.1. (as evidenced by a Compliance Certificate showing calculation in reasonable detail of such covenants on a pro forma basis after giving effect to such release); (iv) the representations and warranties made or deemed made by the Parent, the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except that, to the extent any representation or warranty is qualified by materiality or Material Adverse Effect or similar language, such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except that, to the extent any such representation or warranty is qualified by materiality or Material Adverse Effect or similar language, such representation or warranty shall have been true and correct in all respects) on and as of such earlier date); (v) the Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release; and (vi) at least 75 Properties shall be Eligible Properties included in the calculation of Unencumbered Asset Value after giving effect to such release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 2 contracts
Sources: Credit Agreement (NetSTREIT Corp.), Credit Agreement (NetSTREIT Corp.)
Guarantors. (a) The Guarantors as Company shall ensure that at all times:
(i) all Material Companies which are members of the Effective Date Restricted Group (other than an Excluded Subsidiary), Holding Companies of Material Companies (other than the Holding Company of the Company) and any member of the Restricted Group that is or becomes a guarantor in respect of the Notes, are Guarantors (in the case of any member of the Restricted Group that is or becomes a guarantor in respect of the Notes, simultaneously to becoming guarantors in respect of the Notes); and
(ii) subject to paragraph (d) below, the aggregate of the earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Consolidated EBITDA) of the Guarantors, the aggregate gross assets and the aggregate turnover of the Guarantors (in each case calculated on an unconsolidated basis and excluding all intra- Restricted Group items) represents not less than 90 per cent. of Consolidated EBITDA, consolidated gross assets and consolidated turnover of all members of the Restricted Group, in each case calculated by reference to the Original Financial Statements of the Company prior to the Closing Date; and (ii) thereafter, with each set forth on Schedule 10.14 heretoof audited annual financial statements delivered under Clause 27.1 (Financial Statements).
(b) Upon The Company shall not have any Subsidiary incurring, issuing or guaranteeing obligation to procure that any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, member of the Borrower shall cause such Subsidiary Restricted Group becomes an Additional Guarantor unless the Annual Financial Statements demonstrate that the same would be necessary in order to execute comply with the Guarantee Agreement pursuant to an Addendum thereto in the form requirements of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agentthis Clause 29.14.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) Company shall not prohibit be in breach of sub-paragraph (a)(ii) of this Clause 29.14 if the Freight Separation only reason the 90 per cent. threshold set out therein is not met is that the Excluded Subsidiaries (taken together) have earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Consolidated EBITDA), gross assets and turnover representing more than 10 per cent of Consolidated EBITDA or any merger gross assets or consolidation turnover (excluding intra-Restricted Group items) representing more than 10 per cent. of a Specified Guarantor; provided, thatthe gross assets or turnover of the Restricted Group, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become each case calculated on a Specified Guarantor and be subject to the provisions of this Section 10.14(c)consolidated basis.
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all The Company need only perform its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and paragraph (ii) upon the termination or release of any Guarantor (without limiting clause (ia) above, to the extent it is not unlawful for the relevant person to become a Guarantor and that person becoming a Guarantor would not result in personal liability for that person’s directors or other management. Each Obligor must use, and must procure that the relevant person uses, all reasonable endeavours lawfully available to avoid any such unlawfulness or personal liability. This includes agreeing to a limit on the amount guaranteed. The Agent may (but shall not be obliged to) agree to such a limit if, in its opinion, to do so would avoid the relevant unlawfulness or personal liability.
(e) Any member of the Restricted Group (other than an Excluded Subsidiary) that becomes a Material Company and any Specified GuarantorMaterial Company (other than an Excluded Subsidiary) from its incurrence, issuance acquired in accordance with this Agreement after the Closing Date shall become a Guarantor and guarantee grant Security as the Agent may require and shall accede to the Intercreditor Agreement within 20 Business Days of delivery of any and all debt securities Compliance Certificate accompanying the audited annual financial statements delivered under Clause 27.1 (Financial Statements) or any other Material Indebtednesswithin 20 Business Days of its acquisition, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower case may be.
(f) Nothing in this Agreement shall reasonably request require any Excluded Subsidiary to evidence such release and dischargeaccede as a Guarantor for so long as it is an Excluded Subsidiary.
Appears in 2 contracts
Sources: Term Facility Agreement (Manchester United PLC), Term Facility Agreement (Manchester United PLC)
Guarantors. The Company shall cause each of its Restricted Subsidiaries (a) The Guarantors as other than the Excluded Subsidiaries, Immaterial Subsidiaries and each member of the Effective Date are set forth on Schedule 10.14 hereto.
(bPropel Group)) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement guarantee pursuant to an Addendum the Multiparty Guaranty or supplement or counterpart thereto in the form of Annex I to the Guarantee Agreement(or, and in the case of a Significant Foreign Subsidiary, any other guaranty agreement requested by the Required Holders) the obligations of the Company evidenced by the Notes and under the other Transaction Documents. In furtherance of the above, after the formation or acquisition of any Restricted Subsidiary or the occurrence of a Subsidiary Redesignation, the Company shall promptly (and in any event upon the earlier of (x) such time as such Restricted Subsidiary becomes a guarantor, co-borrower or other obligor under the Credit Agreement and (y) within 45 days after such formation or acquisition or such Subsidiary Redesignation): (i) provide written notice to the holders of Notes upon any Person becoming a Subsidiary, setting forth information in reasonable detail describing all of the assets of such Person; (ii) cause such Person (other than any Excluded Subsidiary, Immaterial Subsidiary and member of the Propel Group) to execute a supplement or counterpart to the Multiparty Guaranty and such other Collateral Documents as are necessary for the Company and its Subsidiaries to comply with Section 9.8; (iii) cause the Applicable Pledge Percentage of the issued and outstanding equity interests of such Person and each other Pledge Subsidiary to be delivered to the Collateral Agent (together with undated stock powers signed in blank, if applicable) and pledged to the Collateral Agent pursuant to an appropriate pledge agreement(s) in substantially the form of the Pledge and Security Agreement (or joinder or other supplement thereto) and otherwise in form reasonably acceptable to the Required Holders; and (iv) deliver documentationsuch other documentation as the Required Holders may reasonably request in connection with the foregoing, including, without limitation, certified resolutions and other authority documents of such Person and, to the extent requested by the Administrative AgentRequired Holders, similar favorable opinions of counsel to that described such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above), all in Section 5.01(b) form, content and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance scope reasonably satisfactory to the Administrative Agent.
Required Holders. Notwithstanding the foregoing, no Foreign Subsidiary shall be required to execute and deliver the Multiparty Guaranty (cor supplement thereto) The Borrower covenants or such other guaranty agreement if such execution and agrees delivery would cause a Deemed Dividend Problem or a Financial Assistance Problem with respect to such Foreign Subsidiary and, in lieu thereof, the Lenders that each Specified Guarantor is, Company and the relevant Restricted Subsidiaries shall remain, an entity organized provide the pledge agreements required under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit 9.7 or Section 9.8. Notwithstanding the Freight Separation or foregoing, the Company will be required to comply with this Section 9.7 with respect to any merger or consolidation Subsidiaries of a Specified Guarantor; provided, that, in accordance with Propel Acquisition LLC to the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to extent that the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon Propel Indebtedness no longer prohibits the Consummation guaranty of the Freight Separationobligations evidenced by the Notes or the granting of security with respect thereto, each of FedEx Corporation and its subsidiaries (but not, for y) with respect to any Immaterial Subsidiary if it ceases to be an Immaterial Subsidiary under the avoidance of doubt, any Subsidiary terms of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargedefinition thereof.
Appears in 2 contracts
Sources: Senior Secured Note Purchase Agreement (Encore Capital Group Inc), Senior Secured Note Purchase Agreement (Encore Capital Group Inc)
Guarantors. (a) The Guarantors Borrower shall (within the time period specified in the following subsection (b), if applicable) cause Spirit REIT and each Material Subsidiary (other than an Excluded Subsidiary) that meets the following conditions to be a party to the Guaranty: (i) such Material Subsidiary becomes obligated in respect of any Indebtedness for borrowed money or Capitalized Lease Obligations of Spirit REIT or the Borrower or (ii) (A) such Material Subsidiary owns an Unencumbered Pool Asset and (B) such Material Subsidiary, or any Subsidiary that directly or indirectly owns any Equity Interest in such Material Subsidiary, has incurred, acquired or suffered to exist any Indebtedness for borrowed money or Capitalized Lease Obligations other than Nonrecourse Indebtedness; provided that one or more Subsidiaries that have, or have a parent company that has, Indebtedness described above in this clause (B) shall not be required to be a party to the Guaranty so long as the aggregate amount of the Effective Date are set forth on Schedule 10.14 heretoall such Indebtedness of all such Subsidiaries does not exceed $35,000,000.
(b) Upon Within five (5) Business Days after any Person becomes a Subsidiary incurringthat is required to be a party to the Guaranty pursuant to the foregoing subsection (a) (whether as a result of the acquisition or creation thereof, issuing such Person ceasing to be an Excluded Subsidiary, the addition of a Property to the Unencumbered Pool that is owned by such Person or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterotherwise), the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I deliver to the Guarantee Agreement, and in Administrative Agent each of the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be following in form and substance reasonably satisfactory to the Administrative Agent: (i) an Accession Agreement executed by such Person and (ii) the items that would have been delivered under subsections (iv) through (viii) and (xvii) of Section 6.1(a) and under Section 6.1(e) if such Person had been a Material Subsidiary on the Agreement Date.
(c) The Borrower covenants and agrees with If any Person that is a party to the Lenders that each Specified Guaranty (other than Spirit REIT) ceases to be required to be a Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with subsection (a) above, the definition of “Specified Guarantor”, any Borrower may request that such Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, be released from the Guaranty. Such release shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, granted so long as (i) upon the Consummation no Default or Event of the Freight Separation, each of FedEx Corporation Default exists and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person continuing and (ii) upon the termination or release of any Guarantor (without limiting clause (i) aboveall representations and warranties continue to be accurate in all material respects, other than any Specified Guarantor) from its incurrenceexcept to extent such representations and warranties are qualified by materiality, issuance in which case such representations and guarantee of any and warranties shall continue to be accurate in all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargerespects.
Appears in 2 contracts
Sources: Term Loan Agreement (Spirit Realty Capital, Inc.), Term Loan Agreement (Spirit Realty Capital, Inc.)
Guarantors. (a) The Guarantors as Parent shall ensure that at all times:
(i) the aggregate of the Effective Date are set forth earnings before interest, tax, depreciation and amortisation (calculated on Schedule 10.14 heretothe same basis as EBITDA, as defined in Clause 19 (Financial Covenants));
(ii) the aggregate of the gross assets; and
(iii) the aggregate of the turnover, of the Guarantors (in each case calculated on an unconsolidated basis and excluding all intra-group items and investments in Subsidiaries of any member of the Group) represents not less than 90% of the EBITDA (as defined in Clause 19 (Financial Covenants), aggregate gross assets and aggregate turnover, respectively, of the Adjusted Group .
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other The Parent shall ensure that each Material Indebtedness, Company which is not a Guarantor becomes a Guarantor in accordance with Clause 30.4 (Additional Guarantors) within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form 10 Business Days of Annex I to the Guarantee Agreement, and in the case of becoming a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative AgentMaterial Company.
(c) The Borrower covenants and agrees with Parent need not perform their obligations under paragraphs (a) and/or (b) above if:
(i) it is unlawful for the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or relevant person to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to that person becoming a Guarantor would result in a personal liability for the directors of that person;
(ii) where the relevant person is a joint venture entity, the relevant person is prohibited from becoming a Guarantor under the provisions of this Section 10.14(cany agreement governing such joint venture; or
(iii) where the relevant person is a joint venture entity, the approval of any other joint venture partner is required for that relevant person to become a Guarantor under the provisions of any agreement governing that joint venture and such approval is refused by the concerned joint venture partner(s).
(d) Notwithstanding anything Each Obligor must use, and procure that the relevant person uses, all reasonable endeavours (including, if necessary, agreeing to a limit on any amount guaranteed but not including the contrary contained herein or in payment of any other Loan Document, material amounts) lawfully available to:
(i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, avoid any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender such unlawfulness or any other Person and personal liability; or
(ii) upon procure the termination removal of or release of any exemption from prohibitions from becoming a Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on applicable agreement(s) or procure the part approval of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargerelevant joint venture partner(s).
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Eros International PLC)
Guarantors. Notify the Administrative Agent at the time that any wholly owned Subsidiary of the Borrower becomes a Regulated Entity, and, subject to the proviso following Section 6.12(c), promptly thereafter (and in any event within 60 days after a Guaranty or Guaranty Joinder Agreement, as applicable, has been approved by all necessary action of all applicable Governmental Authorities), cause such Subsidiary to:
(a) The Guarantors as in the case of the Effective Date are set forth on Schedule 10.14 hereto.first Regulated Entity becoming a Guarantor, a Guaranty and thereafter for each additional Regulated Entity, a Guaranty Joinder Agreement duly executed by such Regulated Entity;
(b) Upon any Subsidiary incurring, issuing an opinion of counsel to each Person executing the Guaranty or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Guaranty Joinder Agreement pursuant to an Addendum thereto this Section 6.12 dated as of the date of delivery of such applicable agreements and other Loan Documents provided for in the form of Annex I this Section 6.12 and addressed to the Guarantee AgreementAdministrative Agent and the Lenders, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory acceptable to the Administrative Agent., each of which opinions may be in form and substance, including assumptions and qualifications contained therein, substantially similar to those opinions of counsel delivered pursuant to Section 4.01(a); and
(c) The Borrower covenants an opinion of counsel to each Person executing the Guaranty or Guaranty Joinder Agreement pursuant to this Section 6.12 dated as of the date of delivery of such applicable agreements and agrees other Loan Documents provided for in this Section 6.12 and addressed to the Administrative Agent and the Lenders, in form and substance reasonably acceptable to the Administrative Agent, each of which opinions may be in form and substance, including assumptions and qualifications contained therein, substantially similar to those opinions of counsel delivered pursuant to Section 4.01(a). provided, notwithstanding the foregoing provisions of this Section 6.12, there shall be no obligation for any such Subsidiary to become a Guarantor and such Subsidiary shall not become a Guarantor unless (x) such Subsidiary, in accordance with the Lenders that each Specified Guarantor isall applicable Laws, may provide (i) such Guaranty or such Guaranty Joinder Agreement, as applicable, and shall remain, an entity organized under (ii) a guarantee of the laws obligations of any jurisdiction within the United States. For Borrower pursuant to the avoidance of doubt, this Section 10.14(c) shall not prohibit Note Purchase Agreement and the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, thatNote Purchase Agreement Notes, in accordance with the definition terms of the Note Purchase Agreement (the “Specified GuarantorNote Purchase Guaranty”), any Person into which (y) all necessary action of all applicable Governmental Authorities has occurred and is effective for such Specified Guarantor is merged or consolidated, or Subsidiary to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, provide (i) upon the Consummation of the Freight Separationsuch Guaranty or such Guaranty Joinder Agreement, each of FedEx Corporation and its subsidiaries (but notas applicable, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor Note Purchase Guaranty, and (without limiting clause (iz) above, other than any Specified substantially concurrent with such Subsidiary becoming a Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor Subsidiary shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part also become a guarantor of the Administrative Agent or any Lender. At the request and sole expense obligations of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver pursuant to the Borrower such documents as Note Purchase Agreement and the Borrower shall reasonably request Note Purchase Agreement Notes, pursuant to evidence such release the execution and dischargedelivery of the Note Purchase Guaranty.
Appears in 2 contracts
Sources: Credit Agreement (Piedmont Natural Gas Co Inc), Credit Agreement (Piedmont Natural Gas Co Inc)
Guarantors. (a) The Guarantors as Within 10 Business Days following the date on which any of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon following conditions first applies to any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterthat is not a Guarantor, the Borrower shall cause such Subsidiary to execute and deliver an Accession Agreement (or if at any time all Guarantors have been released from the Guarantee Agreement pursuant to an Addendum thereto Guaranty and as a result of such releases the Guaranty has terminated, a Guaranty substantially in the form of Annex I the Exhibit D) and the items specified in subsection (b) below:
(i) such Subsidiary Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of the Borrower or any other Subsidiary of the Borrower; or
(ii) such Subsidiary (A) owns an Eligible Property or other asset the value of which is included in the determination of Unencumbered Pool Value and (B) has incurred, acquired or suffered to exist any Recourse Indebtedness. Notwithstanding anything to the Guarantee Agreementcontrary in subsection (a)(i) above, and none of the following Subsidiaries shall be required to become a Guarantor pursuant to the condition described in subsection (a)(i) above: (A) an Excluded Subsidiary of the case type described in clause (a)(ii) of the definition of “Excluded Subsidiary” obligated in respect of a Significant Guarantee of any Subsidiary Secured Indebtedness of the Subsidiary of which such Excluded Subsidiary is a direct or indirect owner; (B) an Excluded Subsidiary of the type described in clause (b) of the definition of “Excluded Subsidiary”; and (C) a Subsidiary obligated pursuant to a limited recourse Guarantee by such Subsidiary in respect of Indebtedness incurred or assumed by any other Subsidiary, whereby the liability of such Subsidiary is limited to deliver documentationfraud, misapplication of funds, environmental indemnities, non-compliance with “separateness covenant,” and other similar customary exceptions to nonrecourse liability (but not exceptions relating to non-collusive involuntary bankruptcy, insolvency, receivership or other similar events affecting the obligor of such Indebtedness) so long as none of the foregoing exceptions to nonrecourse liability actually exists.
(b) On the date that any Accession Agreement or Guaranty is required to be delivered pursuant to subsection (a) above, the Borrower shall cause each Subsidiary that is required to become a Guarantor to deliver, in addition to the extent requested by Accession Agreement or Guaranty to which it is a party, each of the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be following in form and substance reasonably satisfactory to the Administrative Agent.:
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon an opinion of counsel to such Subsidiary, addressed to the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement Administrative Agent and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and Lenders;
(ii) upon the termination certificate or release articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each such Subsidiary certified as of a recent date by the Secretary of State of the state of formation of such Subsidiary;
(iii) a certificate of good standing (or certificate of similar meaning) with respect to each such Subsidiary issued as of a recent date by the Secretary of State of the state of formation of each such Subsidiary and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which each such Subsidiary is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(iv) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each such Subsidiary with respect to each of the officers of such Subsidiary authorized to execute and deliver the Loan Documents to which such Subsidiary is a party;
(v) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each such Subsidiary of (A) the by-laws of such Subsidiary, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any Guarantor other form of legal entity and (without limiting clause B) all corporate, partnership, member or other necessary action taken by such Subsidiary to authorize the execution, delivery and performance of the Loan Documents to which it is a party; and
(ivi) abovesuch other documents, other than any Specified Guarantor) from its incurrence, issuance agreements and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of instruments as the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, Lender through the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall Agent, may reasonably request to evidence such release and dischargerequest.
Appears in 2 contracts
Sources: Credit Agreement (Washington Real Estate Investment Trust), Credit Agreement (Washington Real Estate Investment Trust)
Guarantors. The undersigned Guarantors consent to the provisions of the foregoing Amendment (the “Amendment”) and all prior amendments and confirms and agrees that:
(a) The Guarantors ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.’s obligations under its: (i) Continuing Unlimited Corporate Guaranty dated as of September 30, 2004, (ii) Amended and Restated Continuing Unlimited Corporate Guaranty dated as of October 31, 2006, and (iii) Guarantor’s Security Agreement dated as of September 30, 2004 (collectively, the Effective Date are set forth on Schedule 10.14 hereto.“Care Evolve Guaranty Documents”), relating to the Obligations, shall be unimpaired by the Amendment; and
(b) Upon any Subsidiary incurringGenome Diagnostics Ltd.’s and BRLI-Genpath Diagnostics, issuing or guaranteeing any debt securities or any other Material IndebtednessInc.’s obligations under their respective Continuing Unlimited Corporate Guaranties each dated as of October 31, within thirty 2011 (30) days thereafter, collectively the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, “Genome and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (cGenpath Guaranty Documents”) relating to the authorization forObligations, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to shall be in form and substance reasonably satisfactory to unimpaired by the Administrative Agent.Amendment; and
(c) The Borrower covenants Florida Clinical Laboratory, Inc.’s and agrees Meridian Clinical Laboratory Corp.’s obligations under their respective Continuing Unlimited Corporate Guaranties each dated as of June 7, 2013 (collectively the “FCL and MCL Guaranty Documents” and together with the Lenders that Care Evolve Guaranty Documents and the Genome and Genpath Guaranty Documents, the “Guaranty Documents”), relating to the Obligations, shall be unimpaired by the Amendment; and each Specified Guarantor ishas no defenses, and shall remainset offs, an entity organized under the laws counterclaims, discounts or charges of any jurisdiction within kind against the United States. For the avoidance of doubtBank, this Section 10.14(c) shall not prohibit the Freight Separation its officers, directors, employees, agents or any merger or consolidation of a Specified Guarantorattorneys with respect to their respective Guaranty Documents; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).and
(d) Notwithstanding anything all of the terms, conditions and covenants in the Guaranty Documents remain unaltered and in full force and effect and are hereby ratified and confirmed and apply to the contrary contained herein or Obligations, as modified by the Amendment. Each Guarantor certifies that all representations and warranties made in the Guaranty Documents to which such Guarantor is a party are true and correct. Each Guarantor hereby confirms that any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, collateral for the avoidance of doubtObligations, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically including liens, security interests, mortgages, and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, pledges granted by such Guarantor or third parties (if applicable), shall be automatically continue unimpaired and unconditionally released in full force and discharged from effect, shall cover and secure all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request such Guarantor’s existing and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver future Obligations to the Borrower such documents Bank, as the Borrower shall reasonably request to evidence such release and dischargemodified by this Amendment.
Appears in 2 contracts
Sources: Loan Agreement (Bio Reference Laboratories Inc), Loan Agreement (Bio Reference Laboratories Inc)
Guarantors. (a) The Guarantors as Within fifteen (15) Business Days after the date of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterPerson becoming a Required Guarantor, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I deliver to the Guarantee Agreement, and in Administrative Agent each of the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be following in form and substance reasonably satisfactory to the Administrative Agent: (A)(i) with respect to any owner of the Equity Interests of the Borrower, a joinder or amendment to the Parent Guaranty to unconditionally guaranty the Guaranteed Obligations hereunder in their entirety, and (ii) with respect to any such Subsidiary an Accession Agreement executed by such Required Guarantor, (B) the items that would have been delivered under subsections (vi) through (xiii) of Section 6.1.(a) and under Section 6.1.(f) if such Person had been a Required Guarantor on the Agreement Date and (C) prior to the Collateral Release Date, an executed Pledge Joinder Agreement; provided, however, promptly (and in any event within fifteen (15) Business Days) upon any Excluded Subsidiary ceasing to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement pursuant to this Section, as the case may be, such Subsidiary shall comply with the applicable provisions of this Section.
(b) The Borrower may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall release any Guarantor that is no longer a Required Guarantor, so long as (i) the Borrower shall certify in writing that no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 10.1. (as evidenced by a Compliance Certificate showing calculation in reasonable detail of such covenants on a pro forma basis after giving effect to such release); (ii) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date); (iii) the Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be reasonably acceptable to the Administrative Agent) prior to the requested date of release; and (iv) at least 75 Properties shall be Eligible Properties included in the calculation of Unencumbered Asset Value after giving effect to such release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
(c) The Borrower covenants and agrees with the Lenders may request in writing that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the release, and upon receipt of such request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver release, a Subsidiary Guarantor from the Pledge Agreement so long as: (i) such Subsidiary Guarantor owns no Eligible Property, nor any direct Equity Interest in any Subsidiary that owns an Eligible Property; (ii) such Subsidiary Guarantor is not otherwise required to be a party to the Borrower Pledge Agreement under the immediately preceding subsection (a), (iii) no Default or Event of Default shall then be in existence or would occur as a result of such documents release, including, without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 10.1. (as evidenced by a Compliance Certificate showing calculation in reasonable detail of such covenants on a pro forma basis after giving effect to such release); (iv) the representations and warranties made or deemed made by the Parent, the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall reasonably request be true and correct in all material respects (except that, to evidence the extent any representation or warranty is qualified by materiality or Material Adverse Effect or similar language, such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and dischargeeffect as if made on and as of such date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except that, to the extent any such representation or warranty is qualified by materiality or Material Adverse Effect or similar language, such representation or warranty shall have been true and correct in all respects) on and as of such earlier date); (v) the Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release; and (vi) at least 75 Properties shall be Eligible Properties included in the calculation of Unencumbered Asset Value after giving effect to such release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 2 contracts
Sources: Credit Agreement (NETSTREIT Corp.), Credit Agreement (NETSTREIT Corp.)
Guarantors. (a) The Company will (x) cause each of its Subsidiaries that guarantees or otherwise becomes liable at any time, whether as a borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under any Material Credit Facility (a “Subsidiary Guarantor”) and (y) use commercially reasonable efforts to cause any other entity that is not a Subsidiary that guarantees or otherwise becomes liable at any time, whether as a borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under a Material Credit Facility (a “Non-Subsidiary Guarantor”; together with any other Non-Subsidiary Guarantors and any Subsidiary Guarantors, each a “Guarantor”) to concurrently therewith:
(i) enter into an agreement in form and substance satisfactory to the Required Holders providing for the guaranty by such Guarantor, on a joint and several basis with all other such Guarantors, of (x) the prompt payment in full when due of all amounts payable by the Company pursuant to the Notes (whether for principal, interest, Make-Whole Amount or otherwise) and this Agreement, including all indemnities, fees and expenses payable by the Company thereunder and (y) the prompt, full and faithful performance, observance and discharge by the Company of each and every covenant, agreement, undertaking and provision required pursuant to the Notes or this Agreement to be performed, observed or discharged by it (a “NPA Guaranty”); and
(ii) deliver the following to each Purchaser and holder of a Note:
(A) an executed counterpart of such NPA Guaranty;
(B) a certificate signed by an authorized responsible officer of such Guarantor containing representations and warranties on behalf of such Guarantor to the same effect, mutatis mutandis, as those contained in Sections 5.1, 5.2, 5.6, 5.7 and 5.16 of this Agreement (but with respect to such Guarantor and such NPA Guaranty rather than the Company);
(C) all documents as may be reasonably requested by the Required Holders to evidence the due organization, continuing existence and, where applicable, good standing of such Guarantor and the due authorization by all requisite action on the part of such Guarantor of the Effective Date are set forth on Schedule 10.14 heretoexecution and delivery of such NPA Guaranty and the performance by such Guarantor of its obligations thereunder; and
(D) an opinion of counsel reasonably satisfactory to the Required Holders covering such matters relating to such Guarantor and such NPA Guaranty as the Required Holders may reasonably request.
(b) Upon At the election of the Company and by written notice to each holder of Notes, any Subsidiary incurring, issuing Guarantor may be discharged from all of its obligations and liabilities under its NPA Guaranty and shall be automatically released from its obligations thereunder without the need for the execution or guaranteeing any debt securities or delivery of any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested document by the Administrative Agentholders, similar to provided that described (i) if such Guarantor is a guarantor or is otherwise liable for or in Section 5.01(brespect of any Material Credit Facility, then such Guarantor has been released and discharged (or will be released and discharged concurrently with the release of such Guarantor under its NPA Guaranty) and under such Material Credit Facility, (cii) relating to at the authorization for, execution and delivery time of, and validity of such Significant Subsidiary’s obligations as a Guarantorafter giving effect to, such documentation release and discharge, no Default or Event of Default shall be existing, (iii) no amount is then due and payable under such NPA Guaranty, (iv) if in connection with such Guarantor being released and discharged under any Material Credit Facility, any fee or other form of consideration is given to be in form any holder of Indebtedness under such Material Credit Facility for such release, the holders of the Notes shall receive equivalent consideration substantially concurrently therewith and substance reasonably satisfactory (v) each holder shall have received a certificate of a Responsible Officer certifying as to the Administrative Agentmatters set forth in clauses (i) through (iv).
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation failure of a Specified Guarantor; provided, that, in accordance Non-Subsidiary Guarantor to comply with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged Section 9.7(a)(i) or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any will constitute non-compliance by a Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargewith this Section 9.7.
Appears in 2 contracts
Sources: Note Purchase Agreement (Public Service Co of New Mexico), Note Purchase Agreement (Texas New Mexico Power Co)
Guarantors. (a) The Guarantors as Not later than the applicable Required Joinder Date following the date on which any of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon following conditions first applies to any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterthat is not a Guarantor, the Borrower shall cause such Subsidiary to execute the Guarantee and deliver an Accession Agreement pursuant to an Addendum thereto (or if at such time a Guaranty is not in effect, a Guaranty substantially in the form of Annex I the Exhibit E) and the items specified in subsection (b) below:
(i) such Subsidiary Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of the Borrower or any other Subsidiary of the Borrower (or, from and after the Reorganization, the REIT Entity or any Subsidiary of the REIT Entity) (other than (A) Guarantees of, and other obligations in respect of, Indebtedness relating to construction loans in an aggregate amount for such Guarantees and other obligations not in excess of $200,000,000 at any time, (B) Nonrecourse Indebtedness Guarantees and Guarantees of the type described in clause (b) of the definition of Excluded Subsidiary, (C) obligations in respect of Indebtedness of a Subsidiary in respect of which recourse is limited to pledges of Equity Interests in the Subsidiary that is the primary obligor under such Indebtedness, (D) any Guaranty of Indebtedness of any Subsidiary acquired or assumed in connection with an acquisition of such Subsidiary (so long as such Guaranty was in existence prior to the Guarantee Agreement, consummation of such acquisition and not incurred in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(bcontemplation thereof) and (cE) relating intercompany Indebtedness of a Subsidiary (1) owing to a Loan Party or (2) owing to another Subsidiary so long as such Indebtedness is subordinated to the authorization forObligations); or
(ii) (A) such Subsidiary owns an Eligible Property or other asset the value of which is included in the determination of Unencumbered Pool Value and (B) such Subsidiary, execution and delivery ofor any other Subsidiary that directly or indirectly owns any Equity Interests in such Subsidiary, and validity of such Significant Subsidiary’s obligations incurs or suffers to exist (whether as a Guarantorborrower, co-borrower, guarantor or otherwise) any Recourse Indebtedness (other than intercompany Indebtedness of a Subsidiary (1) owing to a Loan Party or (2) owing to another Subsidiary so long as such documentation Indebtedness is subordinated to the Obligations).
(b) On the date that any Accession Agreement or Guaranty is required to be delivered pursuant to subsection (a) above, the Borrower shall cause each Subsidiary that is required to become a Guarantor to deliver, in addition to the Accession Agreement or Guaranty to which it is a party, each of the following in form and substance reasonably satisfactory to the Administrative Agent.:
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of if requested by the Administrative Agent, any Lender or any other Person an opinion of counsel to such Subsidiary, addressed to the Administrative Agent and the Lenders;
(ii) upon the termination certificate or release articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each such Subsidiary certified as of a recent date by the Secretary of State of the state of formation of such Subsidiary;
(iii) a certificate of good standing (or certificate of similar meaning) with respect to each such Subsidiary issued as of a recent date by the Secretary of State of the state of formation of each such Subsidiary and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which each such Subsidiary is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(iv) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each such Subsidiary with respect to each of the officers of such Subsidiary authorized to execute and deliver the Loan Documents to which such Subsidiary is a party;
(v) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each such Subsidiary of (A) the by-laws of such Subsidiary, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any Guarantor other form of legal entity and (without limiting clause B) all corporate, partnership, member or other necessary action taken by such Subsidiary to authorize the execution, delivery and performance of the Loan Documents to which it is a party; and
(ivi) abovesuch other documents, other than any Specified Guarantor) from its incurrence, issuance agreements and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of instruments as the Administrative Agent or any LenderLender through the Administrative Agent, may reasonably request. At the request and sole expense Until a Subsidiary that is required to become a Guarantor under clause (ii) of the Borrower following any such release immediately preceding subsection (a) becomes a Guarantor, and discharge, delivers to the Administrative Agent the items required to be delivered pursuant to this subsection (b), (i) no Eligible Property owned or leased by such Subsidiary shall execute be included in calculations of Unencumbered Pool Value and deliver (ii) no income attributable to the Borrower any Eligible Property owned or leased by such documents as the Borrower Subsidiary shall reasonably request to evidence such release and dischargebe included in calculations of Unencumbered NOI.
Appears in 2 contracts
Sources: Credit Agreement (Washington Real Estate Investment Trust), Credit Agreement (Washington Real Estate Investment Trust)
Guarantors. (a) The Guarantors Within five (5) Business Days (or such longer period as the Administrative Agent may reasonably determine) of (i) any Person becoming a Material Subsidiary (other than an Excluded Subsidiary) after the Agreement Date, (ii) any Subsidiary of the Borrower (other than an Excluded Subsidiary) becoming the owner, directly or indirectly, of the equity interests of any other Guarantor, (iii) solely with respect to any Subsidiary (other than an Excluded Subsidiary) that was a Material Subsidiary as of the Agreement Date and in good faith and without the actual knowledge of the Borrower did not become a Guarantor as of the Agreement Date, such Subsidiary's identification as being a Material Subsidiary, (iv) solely with respect to any Material Subsidiary that was not an Excluded Subsidiary but in good faith and with reasonable belief was identified by the Borrower to be an Excluded Subsidiary as of the Agreement Date and did not become a Guarantor as of the Agreement Date, May 13, 2013, (v) any Subsidiary that owns an Eligible Property or other asset, the value of which is included in the determination of Unencumbered Asset Value, incurring, acquiring or suffering to exist any Recourse Indebtedness of such Subsidiary, and (vi) any Subsidiary executing and delivering a Guaranty of, or otherwise becoming obligated in respect of, any Indebtedness of the Parent, the Borrower or any Subsidiary of the Borrower, the Borrower shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (a) an Accession Agreement executed by such Subsidiary and (b) the items that would have been delivered under subsections (iv) through (viii) and (xvi) of Section 6.1.(a) if such Person had been a Material Subsidiary on the Agreement Date; provided, that promptly (and in any event within five (5) Business Days) upon any Material Subsidiary which is an Excluded Subsidiary ceasing to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date are set forth on Schedule 10.14 heretoor delivering an Accession Agreement pursuant to this Section, as the case may be, such Material Subsidiary shall comply with the provisions of this Section.
(b) Upon The Borrower may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall release, a Guarantor (but not the Parent) from its Guaranty so long as: (i) no Property owned by such Guarantor shall thereafter be included in the list of Eligible Properties, (ii) such Guarantor shall no longer be a Material Subsidiary and is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) and (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release. In the event the Borrower obtains an Investment Grade Rating during the term of this Agreement, the Borrower may request in writing that the Administrative Agent release, so long as there is no Default or Event of Default in existence or that would occur as a result of such release, and upon receipt of such request the Administrative Agent shall release, each of the Guarantors (but not (x) the Parent, (y) any Subsidiary incurringrequired to become a Guarantor pursuant to Section 8.14.(a)(v) or (vi), issuing or guaranteeing (z) any debt securities Subsidiary that holds title to any Eligible Property or any other Material Indebtednessasset the value of which is included in the determination of Unencumbered Asset Value solely to the extent any Equity Interests of such Subsidiary are owned, within thirty directly or indirectly, by any Subsidiary of the Borrower that is an Excluded Subsidiary pursuant to clause (30a)(x)(ii) days thereafterof the definition of such term (such Subsidiary under this clause (z) being a “Continuing Guarantor Subsidiary”)) from the Guaranty, the Guaranty (but not the Parent Guaranty and other than with respect to any Subsidiary required to become a Guarantor pursuant to Section 8.14(a)(v) or (vi) and any Continuing Guarantor Subsidiary) shall be terminated in accordance with the terms hereof and thereof, and, except to the extent required pursuant to Section 8.14.(a)(v) or (vi) and with respect to any Continuing Guarantor Subsidiary, no future Subsidiary of the Borrower shall be required to provide a Guaranty.
(c) Within five (5) Business Days of the Parent executing and delivering a Guaranty of any Indebtedness of the Borrower or any Subsidiary (except for (i) guaranties of customary exceptions for fraud, misapplication of funds, environmental indemnities, voluntary bankruptcy, collusive involuntary bankruptcy and other similar exceptions to non-recourse liability, (ii) the Indebtedness set forth on Schedule 8.14.(c), and (iii) guaranties of tenant improvement allowances with respect to any Property owned by any of its Subsidiaries to the extent such guaranties are entered into in the ordinary course of the Borrower's business and consistent with past practice), the Borrower shall cause such Subsidiary the Parent to execute amend the Guarantee Agreement pursuant Parent Guaranty to an Addendum thereto unconditionally guaranty the Obligations hereunder in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agenttheir entirety.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and discharge.
Appears in 2 contracts
Sources: Credit Agreement (CBL & Associates Properties Inc), Credit Agreement (CBL & Associates Properties Inc)
Guarantors. (a) The Guarantors as Company will cause each Subsidiary of the Effective Date are set forth Parent (other than the Operating Partnership) that guarantees or otherwise becomes liable at any time, whether as a borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under any Material Credit Facility to concurrently therewith deliver the following to each holder of a Note: (i) a Guaranty; (ii) a certificate signed by an authorized responsible officer of such Guarantor containing representations and warranties on Schedule 10.14 heretobehalf of such Guarantor to the same effect, mutatis mutandis, as those contained in Sections 5.1, 5.2, 5.6, and 5.7 of this Agreement (with respect to such Guarantor and such Guaranty); (iii) all documents as may be reasonably requested by the Required Holders to evidence the due organization, continuing existence and good standing of such Guarantor and the due authorization by all requisite action on the part of such Guarantor of the execution and delivery of such Guaranty and the performance by such Guarantor of its obligations thereunder; and (iv) an opinion of counsel reasonably satisfactory to the Required Holders covering such matters relating to such Guarantor and such Guaranty as the Required Holders may reasonably request.
(b) Upon any Subsidiary incurringThe Company may request in writing that the holders of the Notes release, issuing and upon receipt of such request the holders shall release, a Guarantor from its Guaranty so long as: (i) such Guarantor is not otherwise required to be a party to such Guaranty under the immediately preceding subsection (a) or guaranteeing any debt securities Section 9.8(b); (ii) no Default or any Event of 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 Company and each other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto Obligor in the form Transaction Documents to which any of Annex I to them is a party, as applicable, shall be true and correct on and as of the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity date of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form release with the same force and substance reasonably satisfactory to the Administrative Agent.effect as
(c) The Borrower covenants and agrees with Notwithstanding the Lenders that foregoing, if any lender or agent is paid any remuneration as consideration for the release of such Guarantor as a borrower, co-borrower or guarantor under a Material Credit Facility, then such remuneration shall be concurrently paid, on the same equivalent terms, ratably to each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation holder of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargeNotes then outstanding.
Appears in 1 contract
Guarantors. (a) The Guarantors as Each of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation Company’s direct and its indirect subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations are Debtors under the Guarantee Agreement and Chapter 11 Cases (the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person “Debtor DIP Guarantors”) and (ii) upon with respect to the termination obligations under the Tranche B DIP Term Loans, each other direct or release indirect subsidiary of any Guarantor (without limiting clause (i) abovethe Company, other than any Specified German-domiciled subsidiary, that is a grantor or guarantor under the Superpriority Credit Agreement (collectively, the “Non-Debtor DIP Guarantors” and, collectively with the Debtor DIP Guarantors, the “DIP Guarantors”); provided, however, that (x) the guarantee and security provisions and documentation entered into by the Non-Debtor DIP Guarantors will be subject to substantially the same limitations as set forth in the Superpriority Credit Agreement and the related documentation, (y) no subsidiary shall be required to be a Non-Debtor DIP Guarantor to the extent the granting of a security interest or a guarantee would not provide a corporate benefit to such subsidiary or would cause such subsidiary to be insolvent or financial distressed, in each case, as determined in good faith by such subsidiary or the governing body of such subsidiary, and (z) any local law limitations, applied in a manner consistent with their application under the Superpriority Credit Agreement and the related documentation (the “Foreign Guarantee and Collateral Exception”). The Borrowers and the DIP Guarantors are referred to herein as “DIP Obligors” and each, a “Loan Party”. Notwithstanding the foregoing, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ S.A.S. shall not be a Non-Debtor DIP Guarantor, DIP Obligor or Loan Party. All obligations of the Borrowers under the DIP Facility (i) under the Tranche A DIP Term Loans (as defined below) will be unconditionally guaranteed on a joint and several basis by the Debtor DIP Guarantors and (ii) under the Tranche B DIP Term Loans will be unconditionally guaranteed on a joint a several basis by all DIP Guarantors. No DIP Guarantor shall be released from its incurrenceguarantee obligations by virtue of becoming a non-wholly owned subsidiary unless such DIP Guarantor became non-wholly owned as a result of a bona fide commercial transaction with a third party in which the primary intent was not to cause the release of the guarantee obligations. Administrative Agent: GLAS Americas LLC, issuance and guarantee of any and all debt securities or any other Material Indebtedness, entity acceptable to the Loan Parties and the Required Lenders (in such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and dischargecapacity, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and discharge“DIP Agent”).
Appears in 1 contract
Sources: Restructuring Support Agreement (DIEBOLD NIXDORF, Inc)
Guarantors. (a) The Guarantors as of At all times during which neither the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurringParent has Investment Grade Ratings nor the Borrower has Investment Grade Ratings, issuing or guaranteeing any debt securities within 10 Business Days after a Property or any other Material Indebtedness, within thirty asset that is owned by a Wholly Owned Subsidiary (30other than a Foreign Subsidiary) days thereafterthat is not already a Guarantor is first included in the calculation of Unencumbered Asset Value, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I deliver to the Guarantee Agreement, and in Administrative Agent each of the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be following in form and substance reasonably satisfactory to the Administrative Agent: (i) an Accession Agreement executed by the Subsidiary that owns such Property or other asset and (ii) the items that would have been delivered under subsections (iv) through (viii) and (xiii) of Section 5.1.(a) if such Subsidiary had been a Guarantor on the Agreement Date, with each reference to “Agreement Date” in such subsections deemed to be a reference to the date the Accession Agreement referenced in the immediately preceding clause (i) is delivered to the Administrative Agent.
(b) At all times during which either the Parent has Investment Grade Ratings or the Borrower has Investment Grade Ratings, within 10 Business Days following the date on which any of the following conditions first applies to any Subsidiary that is not already a Guarantor, the Borrower shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (i) an Accession Agreement executed by such Subsidiary, and (ii) the items that would have been delivered under subsections (iv) through (viii) and (xiii) of Section 5.1.(a) if such Subsidiary had been a Guarantor on the Agreement Date, with each reference to “Agreement Date” in such subsections deemed to be a reference to the date the Accession Agreement referenced in the immediately preceding clause (i) is delivered to the Administrative Agent:
(A) such Subsidiary Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of the Parent, the Borrower or any Subsidiary of the Borrower; or
(B) (i) such Subsidiary owns any asset the value of which is included in the determination of Unencumbered Asset Value and (ii) such Subsidiary, or any other Subsidiary that directly or indirectly owns any Equity Interest in such Subsidiary, has incurred, acquired or suffered to exist any Recourse Indebtedness.
(c) The Borrower covenants In addition to the immediately preceding subsections (a) and agrees with the Lenders that each Specified Guarantor is(b), and not in limitation of the immediately preceding subsection (b), within 10 Business Days following the date on which any of the following conditions first applies to any Direct JV Property Owner that owns a JV Property that is included in the calculation of Unencumbered Asset Value and that is not already a Guarantor, the Borrower shall remaindeliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (i) an Accession Agreement executed by such Direct JV Property Owner, an entity organized and (ii) the items that would have been delivered under subsections (iv) through (viii) and (xiii) of Section 5.1.(a) if such Direct JV Property Owner had been a Guarantor on the laws Agreement Date, with each reference to “Agreement Date” in such subsections deemed to be a reference to the date the Accession Agreement referenced in the immediately preceding clause (i) is delivered to the Administrative Agent:
(A) such Direct JV Property Owner Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of any jurisdiction within the United States. For Parent, the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation Borrower or any merger or consolidation Subsidiary of a Specified Guarantorthe Borrower; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which or
(B) such Specified Guarantor is merged or consolidatedDirect JV Property Owner, or any Indirect JV Property Owner, has incurred, acquired or suffered to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c)exist any Recourse Indebtedness.
(d) Notwithstanding anything to the contrary contained herein or The Borrower may request in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) writing that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the release, and upon receipt of such request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver release, a Guarantor (other than the Parent) from the Guaranty so long as: (i) such Guarantor is not required to be a party to the Borrower Guaranty under the immediately preceding subsections (a), (b), or (c), as applicable; (ii) no Default or Event of Default shall then be in existence or would occur as a result of such documents as release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; (iii) the representations and warranties made or deemed made by the Parent, the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall reasonably request to evidence be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and dischargeeffect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (iv) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 1 contract
Guarantors. (a) The Guarantors Except as of the Effective Date are set forth on Schedule 10.14 hereto.
in Section 5.09(b), (bi) Upon if an Eligible Foreign Subsidiary is designated as a Foreign Subsidiary Borrower pursuant to Section 2.23, contemporaneously with the deliveries required to be furnished to the Administrative Agent pursuant to Section 4.03, and (ii) if any Person becomes a Subsidiary of MK Holdings or any Subsidiary incurringqualifies independently as, issuing or guaranteeing is designated by the Company or the Administrative Agent as, a Guarantor pursuant to the definition of “Material Subsidiary”, as promptly as possible but in any debt securities or any other Material Indebtedness, event within thirty (30) days thereafter(or such later date as may be agreed upon by the Administrative Agent) thereof, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and (A) solely in the case of clause (ii) above, the Company shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail as to whether such Subsidiary is a Significant Material Subsidiary and (B) in each case, the Company shall cause each such Foreign Subsidiary Borrower or each such Subsidiary which qualifies as a Material Subsidiary to deliver to the Administrative Agent (1) (x) a joinder to the Guaranty described in clause (a) of the definition of “Guaranty” (in the form contemplated thereby) pursuant to which such Foreign Subsidiary Borrower or Subsidiary, as applicable, agrees to deliver documentation, to the extent requested be bound by the terms and provisions thereof or (y) if such Subsidiary is a Foreign Subsidiary and local counsel advises the Administrative AgentAgent that such Guaranty is not effective under the laws of such Foreign Subsidiary’s jurisdiction of organization to provide a guarantee of the Obligations by such Foreign Subsidiary with substantially the substance and scope as contemplated by the terms of such Guaranty, similar to that a Guaranty described in Section 5.01(bclause (b) and (c) relating to of the authorization for, execution and delivery of, and validity definition of “Guaranty” that is governed by the laws of such Significant Foreign Subsidiary’s obligations as a Guarantorjurisdiction of organization, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent, and (2) to the extent not appropriately included in the documentation described in the preceding clause (1) or in documentation required by Sections 2.23 and 4.03 (in the case of a Material Subsidiary that is a Foreign Subsidiary Borrower), a joinder to this Agreement pursuant to which such Subsidiary agrees to be bound by the terms and provisions hereof, in any such case, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as reasonably requested by the Administrative Agent and in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(cb) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any No Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor CFC (or a CFC Holding Company) shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part to become (or if already a Guarantor, shall be required to continue as) a Guarantor of the Administrative Agent, any Lender Company’s or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargeDomestic Subsidiary’s Obligations.
Appears in 1 contract
Guarantors. (a) The Guarantors as Within fifteen (15) Business Days after the date of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterPerson becoming a Required Guarantor, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I deliver to the Guarantee Agreement, and in Administrative Agent each of the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be following in form and substance reasonably satisfactory to the Administrative Agent: (A)(i) with respect to any owner of the Equity Interests of the Borrower, a joinder or amendment to the Parent Guaranty to unconditionally guaranty the Guaranteed Obligations hereunder in their entirety, and (ii) with respect to any such Subsidiary an Accession Agreement executed by such Required Guarantor and (B) the items that would have been delivered under subsections (v) through (ix) of Section 6.1.(a) and under Section 6.1.(f) if such Person had been a Required Guarantor on the Agreement Date; provided, however, promptly (and in any event within fifteen (15) Business Days) upon any Excluded Subsidiary ceasing to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement pursuant to this Section, as the case may be, such Subsidiary shall comply with the applicable provisions of this Section.
(b) The Borrower may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall release any Guarantor that is no longer a Required Guarantor, so long as (i) the Borrower shall certify in writing that no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) (as evidenced by a Compliance Certificate showing calculation in reasonable detail of such covenants on a pro forma basis after giving effect to such release); (ii) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date); (iii) the Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be reasonably acceptable to the Administrative Agent) prior to the requested date of release; and (iv) at least 100 Properties shall be Eligible Properties included in the calculation of Unencumbered Asset Value after giving effect to such release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c)[Reserved].
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and discharge.
Appears in 1 contract
Sources: Credit Agreement (NETSTREIT Corp.)
Guarantors. (a) The Guarantors as Within fifteen (15) Business Days after the date of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterPerson becoming a Required Guarantor, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I deliver to the Guarantee Agreement, and in Administrative Agent each of the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be following in form and substance reasonably satisfactory to the Administrative Agent: (A)(i) with respect to any owner of the Equity Interests of the Borrower, a joinder or amendment to the Parent Guaranty to unconditionally guaranty the Guaranteed Obligations hereunder in their entirety, and (ii) with respect to any such Subsidiary an Accession Agreement executed by such Required Guarantor, (B) the items that would have been delivered under subsections (vi) through (xiii) of Section 6.1.(a) and under Section 6.1.(f) if such Person had been a Required Guarantor on the Agreement Date and (C) prior to the Collateral Release Date, an executed Pledge Joinder Agreement; provided, however, promptly (and in any event within fifteen (15) Business Days) upon any Excluded Subsidiary ceasing to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement pursuant to this Section, as the case may be, such Subsidiary shall comply with the applicable provisions of this Section.
(b) The Borrower may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall release any Guarantor that is no longer a Required Guarantor, so long as (i) the Borrower shall certify in writing that no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) (as evidenced by a Compliance Certificate showing calculation in reasonable detail of such covenants on a pro forma basis after giving effect to such release); (ii) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date); (iii) the Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be reasonably acceptable to the Administrative Agent) prior to the requested date of release; and (iv) at least 100 Properties shall be Eligible Properties included in the calculation of Unencumbered Asset Value after giving effect to such release. Delivery by the Borrower to the Administrative Agent of any LEGAL 4867-4266-3982v.3 such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
(c) The Borrower covenants and agrees with the Lenders may request in writing that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the release, and upon receipt of such request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver release, a Subsidiary Guarantor from the Pledge Agreement so long as: (i) such Subsidiary Guarantor owns no Eligible Property, nor any direct Equity Interest in any Subsidiary that owns an Eligible Property; (ii) such Subsidiary Guarantor is not otherwise required to be a party to the Borrower Pledge Agreement under the immediately preceding subsection (a), (iii) no Default or Event of Default shall then be in existence or would occur as a result of such documents release, including, without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 10.1. (as evidenced by a Compliance Certificate showing calculation in reasonable detail of such covenants on a pro forma basis after giving effect to such release); (iv) the representations and warranties made or deemed made by the Parent, the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall reasonably request be true and correct in all material respects (except that, to evidence the extent any representation or warranty is qualified by materiality or Material Adverse Effect or similar language, such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and dischargeeffect as if made on and as of such date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except that, to the extent any such representation or warranty is qualified by materiality or Material Adverse Effect or similar language, such representation or warranty shall have been true and correct in all respects) on and as of such earlier date); (v) the Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release; and (vi) at least 75 Properties shall be Eligible Properties included in the calculation of Unencumbered Asset Value after giving effect to such release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 1 contract
Sources: Credit Agreement (NETSTREIT Corp.)
Guarantors. If any Subsidiary issues, creates, assumes, incurs, suffers to exist, or in any manner becomes liable, under a Guaranty of any Debt of the Borrower in excess of $5,000,000 individually or $10,000,000 in the aggregate when taken together with all other Debt of the Borrower that is guaranteed by any Subsidiary (such Guaranty by a Subsidiary being referred to as “Other Guaranty”), then concurrently with or prior to such Subsidiary issuing, creating, assuming, incurring, suffering to exist or otherwise becoming liable under such Other Guaranty, the Borrower shall, and shall cause such Subsidiary to, deliver to the Administrative Agent each of the following:
(a) The Guarantors as of a joinder and supplement to the Effective Date are set forth on Schedule 10.14 hereto.Subsidiary Guaranty executed by such Subsidiary;
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause a secretary’s certificate from such Subsidiary certifying as to execute (i) the Guarantee Agreement pursuant to an Addendum thereto in incumbency of the form officers of Annex I such Subsidiary executing any Credit Document, (ii) authorizing resolutions with respect to the Guarantee Agreementtransactions contemplated by the Credit Documents to which such Subsidiary is a party, (iii) the organizational documents of such Subsidiary, (iv) governmental approvals, if any, required to be obtained by such Subsidiary with respect to the Credit Documents to which such Subsidiary is a party and (v) a certificate of good standing in the case such Subsidiary’s state of organization dated as of a Significant Subsidiary, to deliver documentation, recent date;
(c) to the extent not already provided to the Administrative Agent, all documentation and other information that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act; and
(d) to the extent not already provided to the Administrative Agent and only if requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity an opinion of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be counsel in form and substance reasonably satisfactory acceptable to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized Agent related to such Subsidiary. Any Guaranty made under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) 5.6 shall not prohibit automatically terminate upon the Freight Separation or any merger or consolidation earlier of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon when all the Consummation Obligations (other than indemnity and other contingent obligations for which no claim shall have been asserted at any relevant time of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separationdetermination) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement have been paid in full in cash and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and discharge.Lenders have no further
Appears in 1 contract
Guarantors. (a) The Guarantors as Within thirty (30) days of any Person becoming a Material Subsidiary (other than an Excluded Subsidiary) after the Agreement Date, the Borrower shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (i) an Accession Agreement executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iv) through (viii), and (xiv) of Section 5.1.(a) if such Subsidiary had been a Material Subsidiary on the Agreement Date; provided, however, promptly (and in any event within 30 days) upon any Excluded Subsidiary ceasing to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date are set forth on Schedule 10.14 heretoor delivering an Accession Agreement pursuant to this Section, as the case may be, such Subsidiary shall comply with the provisions of this Section.
(b) Upon The Borrower may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall release, a Guarantor from the Guaranty so long as: (i) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a); (ii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any Subsidiary incurring, issuing of the covenants contained in Section 9.1.; (iii) the representations and warranties made or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, deemed made by the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto and each other Loan Party in the form Loan Documents to which any of Annex I to them is a party, shall be true and correct on and as of the Guarantee Agreement, date of such release with the same force and in the case effect as if made on and as of a Significant Subsidiary, to deliver documentation, such date except to the extent requested by that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and accurate on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents; and (iv) the Administrative Agent, similar to that described in Section 5.01(b) and Agent shall have received such written request at least 10 Business Days (c) relating to the authorization for, execution and delivery of, and validity of or such Significant Subsidiary’s obligations shorter period as a Guarantor, such documentation to may be in form and substance reasonably satisfactory acceptable to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject prior to the provisions requested date of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of release. Delivery by the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of to the Administrative Agent or of any Lender. At such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and sole expense as of the Borrower following any date of the effectiveness of such release request) are true and discharge, the Administrative Agent shall execute and deliver correct with respect to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargerequest.
Appears in 1 contract
Sources: Term Loan Agreement (Government Properties Income Trust)
Guarantors. (a) The Guarantors Except as set forth in Section 5.09(b), (i) if an Eligible Foreign Subsidiary is designated as a Foreign Subsidiary Borrower pursuant to Section 2.23, contemporaneously with the deliveries required to be furnished to the Administrative Agent pursuant to Section 4.05, (ii) if any Person becomes a Subsidiary of MK Holdings (including, without limitation, any Division Successor) or any Subsidiary qualifies independently as, or is designated by the Company or the Administrative Agent as, a Guarantor pursuant to the definition of “Material Subsidiary”, as promptly as possible but in any event within sixty (60) days (or, with respect to the Target or any Subsidiary of the Effective Date are set forth on Schedule 10.14 hereto.
Target that becomes a Subsidiary of MK Holdings pursuant to the Target Acquisition, ninety (b90) Upon days; or, in each case, such later date as may be agreed upon by the Administrative Agent) thereof and (iii) if any Subsidiary incurringthat is not a Loan Party guarantees the Senior Notes (“Senior Notes Subsidiary Guarantor”), issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30A) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and solely in the case of clause (ii) above, the Company shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail as to whether such Subsidiary is a Significant Material Subsidiary and (B) in each case, the Company shall cause each such Foreign Subsidiary Borrower, each such Subsidiary which qualifies as a Material Subsidiary or each such Subsidiary that is a Senior Notes Subsidiary Guarantor to deliver to the Administrative Agent (1) (x) a joinder to the Guaranty described in clause (a) of the definition of “Guaranty” (in the form contemplated thereby) pursuant to which such Foreign Subsidiary Borrower or Subsidiary, as applicable, agrees to deliver documentation, to the extent requested be bound by the terms and provisions thereof or (y) if such Subsidiary is a Foreign Subsidiary and local counsel advises the Administrative AgentAgent that such Guaranty is not effective under the laws of such Foreign Subsidiary’s jurisdiction of organization to provide a guarantee of the Obligations by such Foreign Subsidiary with substantially the substance and scope as contemplated by the terms of such Guaranty, similar to that a Guaranty described in Section 5.01(bclause (b) and (c) relating to of the authorization for, execution and delivery of, and validity definition of “Guaranty” that is governed by the laws of such Significant Foreign Subsidiary’s obligations as a Guarantorjurisdiction of organization, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent), and (2) to the extent not appropriately included in the documentation described in the preceding clause (1) or in documentation required by Sections 2.23 and 4.03 (in the case of a Material Subsidiary that is a Foreign Subsidiary Borrower), a joinder to this Agreement pursuant to which such Subsidiary agrees to be bound by the terms and provisions hereof, in any such case, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as reasonably requested by the Administrative Agent and in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any No Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor CFC or a CFC Holding Company shall be automatically required to guarantee (or if already a Guarantor, shall be required to continue to guarantee) (1) any Obligations of any Domestic Subsidiary or (2) any Obligations of another Loan Party to the extent and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other in respect of such Loan Documents without any further action required on the part Party’s guarantee of the Administrative Agent, Obligations of any Lender or any other Person Domestic Subsidiary and (ii) upon no Subsidiary shall be required to become (or if already a Guarantor, shall be required to continue as) a Guarantor to the termination extent (x) such Subsidiary is prohibited by applicable law, rule or release regulation from guaranteeing the Obligations or which would require governmental or regulatory consent, approval, license or authorization to provide such guaranty (unless such consent, approval, license or authorization has been received), (y) such Subsidiary is a non-wholly owned Subsidiary and is prohibited by its organizational documents or applicable equity holder agreement from guaranteeing the Obligations or which would require the consent or approval of any Guarantor an equity holder (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities MK Holdings or any other Material Indebtedness, of its wholly owned Subsidiaries) to provide such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of guaranty (unless such consent or approval has been received) or (z) the Administrative Agent determines that the cost or any Lender. At the request and sole expense other consequence of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver Subsidiary providing such a guarantee is excessive in relation to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargevalue afforded thereby.
Appears in 1 contract
Guarantors. (a) The Guarantors as Parent shall ensure that:
(i) [Reserved];
(ii) except to the extent a later date is consented to by the applicable Collateral Agent (such consent not to be unreasonably withheld or delayed), on the earlier of (x) the date of delivery of the Effective Date Compliance Certificate in respect of each of the annual financial statements and (y) the due date for delivery of the Compliance Certificate in respect of each of the annual financial statements, subject to the Agreed Security Principles;
(iii) on or prior to the date that is 60 days after a disposal described under clause (i) of the carve-out in the definition of Asset Sale or such later date consented to by the applicable Collateral Agent (such consent not to be unreasonably withheld or delayed), subject to the Agreed Security Principles; and
(iv) on or prior to the date that is 60 days after (or such later date consented to by the applicable Collateral Agent (such consent not to be unreasonably withheld or delayed) after the acquisition of any Person that becomes a Subsidiary of Parent, subject to the Agreed Security Principles:
(1) all Material Companies which are set forth members of the Restricted Group, all Holding Companies of Material Companies (other than Parent and any Holding Company of Parent) and any Person that is a guarantor of any Debt Incurred pursuant to Sections 6.1(a), 6.1(b)(x) or 6.1(b)(xxiii) (other than, in each case, any such Debt Incurred pursuant to such Sections in connection with local lines of credit or financings Incurred by Subsidiaries of Parent) are Guarantors, provided that (i) no member of the Restricted Group incorporated in an Excluded Jurisdiction shall be required to become a Guarantor and (ii) no Dormant Subsidiary shall be required to become a Guarantor; and
(2) the portion of Consolidated EBITDA attributable to the Guarantors, represents not less than 90% of the Consolidated EBITDA of the Restricted Group (tested annually and calculated by reference to the most recent annual financial statements of the members of the Restricted Group (but in each case Consolidated EBITDA shall be calculated (a) without taking into account the contribution to Consolidated EBITDA of (i) any Dormant Subsidiary (other than any Dormant Subsidiary that is a Guarantor) or (ii) any Subsidiary of Parent incorporated in an Excluded Jurisdiction and (b) taking into account the contribution to Consolidated EBITDA of any Non-Guarantor Subsidiary that is a not-for-profit entity so long as the Holding Company of such not-for-profit entity is a Guarantor)) (the test referred to in this Section 5.15(a)(iii)(2) being the “Coverage Test”). For the purpose of determining whether the Coverage Test has been complied with, the annual financial statements shall be adjusted to give effect to any acquisitions on Schedule 10.14 heretoa Pro Forma Basis (including through mergers or consolidations) and Asset Sales of companies, undertakings and businesses which have taken place prior to the last day of the period covered by such financial statements and, where this test has to be satisfied in order for an Asset Sale or resignation of a Credit Party to be permitted hereunder, to give effect to the relevant Asset Sale or resignation on a Pro Forma Basis.
(b) Upon Subject to the Agreed Security Principles, any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty Person that is required to become a Guarantor pursuant to clause (30a) days thereafter, above shall grant Liens as the Borrower Primary Collateral Agent may require (acting reasonably) and shall cause such Subsidiary accede to execute the Guarantee Intercreditor Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be written undertaking in form and substance reasonably satisfactory to the Administrative AgentPrimary Collateral Agent as soon as practicable and in any event within 60 days of delivery of any annual financial statements delivered under Section 5.1(b) or within 60 days of its acquisition, as the case may be (or such later date consented to by the applicable Collateral Agent (such consent not to be unreasonably withheld or delayed)).
(c) The Borrower covenants and agrees with Subject to the Lenders Agreed Security Principles, Parent shall ensure that each Specified member of the Restricted Group which is required to become an additional Guarantor is, pursuant to clause (a) above shall become an additional Guarantor and shall remain, an entity organized under in connection therewith ensure that the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which applicable Collateral Agent receives such Specified Guarantor is merged or consolidatedlegal opinions and other documentation as may be reasonably and customarily requested by such Collateral Agent, or such later date consented to which all by the applicable Collateral Agent (such consent not to be unreasonably withheld or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(cdelayed).
(d) Notwithstanding anything to A Credit Party which is a Guarantor on the contrary contained herein or in any other Loan Document, Amendment and Restatement Date may not resign as a Guarantor under this Agreement unless (i) upon it is being disposed of, merged, consolidated, amalgamated, combined into another Person or liquidated in connection with a Permitted Transaction or otherwise in accordance with the Consummation terms of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee this Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon as otherwise agreed by the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargeRequisite Lenders.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Nord Anglia Education, Inc.)
Guarantors. (a) The Guarantors as Within 10 Business Days following the date on which any of the Effective Date following conditions first applies to any Subsidiary that is not already a Guarantor, the Borrower shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (i) an Accession Agreement (or if no Guaranty is then in effect, the Guaranty), and (ii) the items that would have been delivered under subsections (iii) through (vii), (xii) and (xiii) of Section 5.1.(a) if such Subsidiary had been a Loan Party on the Agreement Date:
(A) such Subsidiary Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of the Borrower or any other Subsidiary of the Borrower (other than an Excluded Subsidiary guaranteeing or otherwise becoming obligated in respect of the Indebtedness of another Excluded Subsidiary); or
(B) (i) such Subsidiary owns an asset the value of which is included in the determination of Unencumbered Asset Value and (ii) such Subsidiary, or any other Subsidiary that directly or indirectly owns any Equity Interest in such Subsidiary, has incurred, acquired or suffered to exist any Recourse Indebtedness (other than Recourse Indebtedness which, together with all other such Indebtedness of Subsidiaries owning Unencumbered Assets or other assets the value of which is included in the determination of Unencumbered Asset Value and that are set forth on Schedule 10.14 heretonot Guarantors, does not exceed $1,000,000 at any time outstanding).
(b) Upon The Borrower may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall release, a Guarantor from the Guaranty so long as: (i) such Guarantor is not required to be a party to the Guaranty under the immediately preceding subsection (a); (ii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any Subsidiary incurring, issuing of the covenants contained in Section 9.1.; (iii) the representations and warranties made or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, deemed made by the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto and each other Loan Party in the form Loan Documents to which any of Annex I to the Guarantee Agreementthem is a party, shall be true and correct in all material respects (except in the case of a Significant Subsidiaryrepresentation or warranty qualified by materiality, to deliver documentation, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent requested that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents; and (iv) the Administrative Agent, similar to that described in Section 5.01(b) and Agent shall have received such written request at least 10 Business Days (c) relating to the authorization for, execution and delivery of, and validity of or such Significant Subsidiary’s obligations shorter period as a Guarantor, such documentation to may be in form and substance reasonably satisfactory acceptable to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject prior to the provisions requested date of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of release. Delivery by the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of to the Administrative Agent or of any Lender. At such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and sole expense as of the Borrower following any date of the effectiveness of such release request) are true and discharge, the Administrative Agent shall execute and deliver correct with respect to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargerequest.
Appears in 1 contract
Sources: Credit Agreement (Government Properties Income Trust)
Guarantors. (a) The Guarantors Company will cause each Non-Regulated Subsidiary that is or becomes a borrower or guarantor under or in respect of any Principal Credit Facility to become a Guarantor, prior to or concurrently with so becoming a borrower or a guarantor as of aforesaid, by causing such Person (a “Guarantor”), at the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurringCompany’s expense, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant and/or deliver to an Addendum thereto in the form each holder of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentationNotes, to the extent requested not prohibited by applicable law:
(i) (A) a Guaranty Agreement in substantially the Administrative Agentform of Exhibit 9.7 hereto (or a Joinder Agreement to such Guaranty Agreement in substantially the form of Exhibit A thereto) pursuant to which such Subsidiary shall agree, similar inter alia, to that described in Section 5.01(bguarantee the Obligations, or (B) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be guarantee agreement otherwise in form and substance reasonably satisfactory to the Administrative AgentRequired Holders;
(ii) copies of the Organizational Documents of such Guarantor, resolutions of the board of directors (or other similar governing body) of such Guarantor authorizing its execution and delivery of the Subsidiary Guaranty by such Guarantor and the transactions contemplated thereby, and specimen signatures of authorized officers of such Guarantor (in each case, certified as correct and complete copies by the secretary or an assistant secretary (or an equivalent officer) of such Guarantor); and
(iii) an opinion of counsel to such Guarantor with respect to the Subsidiary Guaranty executed by such Guarantor, which opinion may be subject to customary qualifications and limitations, to the effect that: (A) the applicable Subsidiary Guaranty has been duly executed and authorized, (B) such Subsidiary Guaranty constitutes a valid, binding and enforceable obligation of such Guarantor, except insofar as enforcement thereof may be limited by bankruptcy, insolvency or similar laws (including, without limitation, all laws relating to fraudulent transfers) and except insofar as enforcement thereof is subject to general principles of equity and (C) except as could not reasonably be expected to result in a Material Adverse Effect, the execution, delivery and performance by the Guarantor of the Subsidiary Guaranty will not (1) contravene, result in any breach of, or constitute a default under any corporate charter or by-laws or similar organizational documents of such Guarantor, (2) conflict with or result in a breach of the express terms or conditions of material Indebtedness of the Company or such Guarantor, or (3) violate any provision of any Federal or state (which may be limited to the state(s) in which such counsel is admitted to practice) statute or other rule or regulation.
(b) Upon (i) delivery to the Company of a consent executed by the Required Holders with respect to a Guarantor (but subject to the provisions of Section 17.2(c) hereof), (ii) any sale, exchange or transfer (by merger or otherwise) of the Capital Stock of a Guarantor, after which such Guarantor is no longer a Non-Regulated Subsidiary or a Permitted Joint Venture, or (iii) the sale or disposition of all the assets of such Guarantor, which sale, exchange, transfer or disposition is made in compliance with the applicable provisions of Section 10.2 (but only if such Guarantor will not be a borrower or guarantor of obligations outstanding under any Principal Credit Facility after giving effect to such transaction), such Person shall automatically be released as a Guarantor under the Subsidiary Guaranty to which it is a party with effect from the date of such event under clause (i), (ii) or (iii), as applicable.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized Company will not cause or permit any Regulated Subsidiary to become a borrower or guarantor under the laws or in respect of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c)Principal Credit Facility.
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and discharge.
Appears in 1 contract
Guarantors. (a) The Guarantors as Subject to paragraphs (b), (c), (d) and (e) below, the Company shall ensure that, at all times on and after the date (the “Guarantee Take-up Date”) four weeks after the Closing Date:
(i) each Material Company is a Guarantor; and
(ii) the aggregate of, respectively, gross assets, net assets, pre-Tax profits and revenues of the Effective Date are set forth Guarantors (in each case calculated on Schedule 10.14 heretoan unconsolidated basis and excluding all intra-Group items and investments in Subsidiaries of any member of the Group) exceeds 80 per cent. of, respectively, the consolidated gross assets, net assets, pre-Tax profits or revenues of the Group.
(b) Upon The Company shall be required to comply with paragraph (a) above at all times after the Guarantee Take-up Date, provided that:
(i) if, as a result of an acquisition of any Subsidiary incurringnew company or business (an “Additional Acquisition”), issuing one or guaranteeing more Subsidiaries of the Company are required to accede to this Agreement as Guarantor(s) in order for paragraph (a) above to be complied with, the Company shall ensure that such accession is completed within 45 days from the date of the Additional Acquisition;
(ii) if any debt securities Annual Financial Statements or Quarterly Financial Statements demonstrate that one or more additional Subsidiaries are required to accede to this Agreement as Guarantors in order to comply with paragraph (a) above (other than as a result of transfers of assets or any other Material Indebtednesstransaction between members of the Group), then the Company shall ensure that such accession(s) is or are completed within thirty 45 days of delivery of the relevant Annual Financial Statements or Quarterly Financial Statements; and
(30iii) days thereafterif any transfer of assets or other transaction between members of the Group is proposed, which would result in paragraph (a) not being complied with following such transfer or other transaction, then the Borrower shall cause Company must ensure that one or more of its Subsidiaries accede to this Agreement as Guarantor such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(bparagraph (a) and (c) relating to the authorization for, execution and delivery of, and validity above will be complied with immediately upon completion of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agenttransfer or other transactions.
(c) The Borrower covenants Company need only perform its obligations under paragraph (a) above if it is not unlawful for the relevant person to become a Guarantor and agrees with the Lenders that each Specified person becoming a Guarantor iswould not result in personal liability for that person’s directors or other management. Each Obligor must use, and shall remainmust procure that the relevant person uses, an entity organized under all reasonable endeavours lawfully available to avoid any such unlawfulness or personal liability. This includes agreeing to a limit on the laws of any jurisdiction within the United Statesamount guaranteed. For the avoidance of doubt, this Section 10.14(c) The Agent may (but shall not prohibit the Freight Separation or any merger or consolidation of be obliged to) agree to such a Specified Guarantor; provided, thatlimit if, in accordance with its opinion, to do so would avoid the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged relevant unlawfulness or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c)personal liability.
(d) Notwithstanding anything to No breach of paragraphs (a) or (b) above will occur, if the contrary contained herein or in any other Loan Documentbreach is a result of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ not being a Guarantor on the Guarantee Take-up Date, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) provided that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is a Guarantor at all times on or after the date which is 8 weeks after the Closing Date.
(e) The Company shall be automatically ensure that at all times on and unconditionally released and discharged from all its obligations under after the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and dischargeClosing Date, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargeTarget is a Guarantor.
Appears in 1 contract
Guarantors. (a) The Guarantors as At all times during which neither the Parent has Investment Grade Ratings nor the Borrower has Investment Grade Ratings, within 10 Business Days of the Effective Date are set forth date a Wholly Owned Subsidiary (other than a Foreign Subsidiary) that is not already a Guarantor first becomes the owner of a Property or any other assets included in the calculation of Unencumbered Asset Value, the Borrower shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (i) an Accession Agreement executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iv) through (viii) and (xiii) of Section 5.1.(a) if such Subsidiary had been a Guarantor on Schedule 10.14 heretothe Agreement Date.
(b) Upon At all times during which either the Parent has an Investment Grade Ratings or the Borrower has Investment Grade Ratings, within 10 Business Days following the date on which any of the following conditions first applies to any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterthat is not already a Guarantor, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I deliver to the Guarantee Agreement, and in Administrative Agent each of the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be following in form and substance reasonably satisfactory to the Administrative Agent: (i) an Accession Agreement, and (ii) the items that would have been delivered under subsections (iv) through (viii) and (xiii) of Section 5.1.(a) if such Subsidiary had been a Guarantor on the Agreement Date:
(A) such Subsidiary Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of the Parent, the Borrower or any Subsidiary of the Borrower; or
(B) such Subsidiary (A) owns any asset the value of which is included in the determination of Unencumbered Asset Value and (B) has incurred, acquired or suffered to exist any Recourse Indebtedness.
(c) The Borrower covenants and agrees with the Lenders may request in writing that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the release, and upon receipt of such request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver release, a Guarantor (other than the Parent) from the Guaranty so long as: (i) such Guarantor is not required to be a party to the Borrower Guaranty under the immediately preceding subsections (a) or (b), as applicable; (ii) no Default or Event of Default shall then be in existence or would occur as a result of such documents as release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; (iii) the representations and warranties made or deemed made by the Parent, the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall reasonably request to evidence be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and dischargeeffect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (iv) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 1 contract
Guarantors. (a) The Guarantors Promptly after any Person (x) is required by Section 6.01(f) to be disclosed as of the Effective Date are set forth on Schedule 10.14 hereto.
an Eligible Material Subsidiary (b) Upon and in any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, event within thirty (30) 30 days thereafter), or (y) becomes a Guarantor (as defined in the Revolving Credit Agreement) or a Borrower (as defined in the Revolving Credit Agreement) under the Revolving Credit Agreement, the Borrower Company, in each case, shall cause such Person to (i) become a Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I Guarantor by executing and delivering to the Guarantee AgreementAdministrative Agent a counterpart of the Subsidiary Guaranty or such other document as the Administrative Agent shall deem appropriate for such purpose, and in the case of a Significant Subsidiary, to (ii) deliver documentation, to the extent requested by Administrative Agent documents of the Administrative Agenttypes referred to in clauses (iii), similar to that described in Section 5.01(b(iv), (v) and (cvi) relating of Section 4.01(a) and favorable opinions of counsel to such Person (which shall cover, among other things, the authorization forlegality, execution validity, binding effect and delivery ofenforceability of the documentation referred to in clause (i) of this Section 6.11(a)), all in form, content and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance scope reasonably satisfactory to the Administrative Agent.
(i) Upon and no later than 30 days after the delivery to the Administrative Agent of the annual Financial Statements and accompanying Compliance Certificate pursuant to Section 6.01(b) and (c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that), in accordance with relation to any Subsidiary Guarantor that has ceased to be a Material Subsidiary as of the end of such fiscal year, or (ii) upon and no later than 30 days after the Company receives notice that a Subsidiary Guarantor has become an Ineligible Material Subsidiary by virtue of the satisfaction of clause (a) or (b) of the definition of “Specified GuarantorIneligible Material Subsidiary” solely due to a Change in Law after the date such Person became a Foreign Obligor here- under and the Company is unable, with the exercise of commercially reasonable efforts, to restore such Subsidiary’s status as an Eligible Material Subsidiary (in either case, a “Releasable Subsidiary”), any Person into provided there exists no Default (other than a Subsidiary Guarantor that has become an Ineligible Material Subsidiary by virtue of clause (a) of the definition of “Ineligible Material Subsidiary,” which the Company is unable, with the exercise of commercially reasonable efforts, to resolve, as to which such Specified proviso shall not apply), the Company may deliver to the Administrative Agent a duly executed certificate of a Responsible Officer of the Company, in the form of Exhibit J (“Guarantor is merged or consolidatedRelease Certificate”) and, or upon the receipt of such certificate by the Administrative Agent, such Releasable Subsidiary shall thereupon cease to which all or substantially all of its assets are soldbe a Subsidiary Guarantor, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions possible future application of this Section 10.14(c6.11(a).
. The Administrative Agent shall with reasonable promptness execute and deliver such reasonable release documentation (d) Notwithstanding anything which shall contain appropriate representations and warranties by the Company as to the contrary contained herein circumstances underlying such release transaction, but shall require no representation, warranty or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required undertaking on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall Company may reasonably request to evidence such the release and dischargetermination of the Subsidiary Guaranty as to such Releasable Subsidiary. No release of any Subsidiary Guarantor shall in any way modify, affect or impair the enforceability of the Subsidiary Guaranty in respect of any other Subsidiary Guarantor.
Appears in 1 contract
Sources: Term Loan Agreement (Flextronics International Ltd.)
Guarantors. (a) The Guarantors Each Obligor will, and will cause each of its Subsidiaries to, take such action from time to time as shall be necessary to ensure that all domestic Subsidiaries of such Obligor are “Guarantors” hereunder. Without limiting the generality of the Effective Date are set forth on Schedule 10.14 hereto.foregoing, in the event that an Obligor or any of its Subsidiaries shall form or acquire any new domestic Subsidiary that shall constitute a Subsidiary hereunder, such Obligor will cause such new domestic Subsidiary to, within 30 days after such formation or acquisition:
(bi) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement become a “Guarantor” hereunder pursuant to an Addendum thereto in the form of Annex I to the a Guarantee Assumption Agreement, and execute joinders to the Security Agreement and other Security Documents thereby granting the Lender a first priority lien on all of such Guarantor’s Accounts, Inventory, Equipment (hereinafter, as each such term is defined in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(bSecurity Agreement) and (c) relating to related property as collateral security for the authorization forGuaranteed Obligations, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.Lender;
(cii) The Borrower covenants cause such new domestic Subsidiary to take such action as shall be necessary to create and agrees with the Lenders that each Specified Guarantor is, perfect valid and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or enforceable first-priority Liens on substantially all of its assets are soldthe Accounts, transferred Inventory, Equipment and related property of such new Subsidiary as collateral security for the obligations of such new Subsidiary under the Financing Documents; and
(iii) deliver such proof of corporate action, incumbency of officers, opinions of counsel and other documents as is consistent with those delivered by each Obligor pursuant to Section 5.01 on the Closing Date or disposedas the Lender shall have requested, shall become a Specified Guarantor all in form and be subject substance reasonably satisfactory to the provisions of this Section 10.14(c)Lender.
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and discharge.
Appears in 1 contract
Sources: Loan Agreement (Valpey Fisher Corp)
Guarantors. (a) The Guarantors as of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein in this Agreement, each Guarantor, jointly and severally, hereby agrees to guarantee in full all duties and obligations of Sellers in this Agreement (including the indemnification obligations of Sellers under this Article 8, on the terms and subject to the conditions, limitations and other provisions set forth in this Article 8 with respect to such indemnification obligations of Sellers) (the “Guaranteed Seller Obligations”). The obligations of each Guarantor under this Section 8.07 shall constitute a present and continuing guaranty of payment and performance and not merely of collectability. Each Guarantor agrees that the Guaranteed Seller Obligations will not be discharged except by complete performance or payment of such Guaranteed Seller Obligations and will not be discharged, affected, or impaired in any other Loan Documentway, or subject to any defense, set-off, deduction, or counterclaim whatsoever, by reason of: (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required failure on the part of any of the Administrative AgentBuyers or any of their respective Affiliates and Representatives to timely assert any claim or demand or to enforce any right or remedy against any Seller; (ii) any change in the time (including any extension of the time), place or manner of payment or performance of any Lender of the Guaranteed Seller Obligations or any amendment or modification to, or waiver under, this Agreement; (iii) any discharge of any obligation of any of the Buyers arising out of any applicable Action seeking the application of bankruptcy, moratorium and other laws affecting creditors’ rights generally and as limited by the availability of specific performance and the application of equitable principles, against any Seller; (iv) any change in the corporate existence, structure, or ownership of any Seller, Guarantor or any other Person and interested in the transactions contemplated by this Agreement; or (iiv) upon the termination or release adequacy of any Guarantor (without limiting clause (i) above, other than means any Specified Guarantor) from its incurrence, issuance and guarantee of the Buyers may have of obtaining payment or performance of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargeGuaranteed Seller Obligations.
Appears in 1 contract
Guarantors. (a) The Guarantors Company will cause any Person that guarantees or otherwise becomes liable at any time, whether as a borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under any Material Credit Facility to concurrently therewith:
(i) enter into an agreement in form and substance satisfactory to the Required Holders providing for the guaranty by such Person, on a joint and several basis with all other such Persons, of (x) the prompt payment in full when due of all amounts payable by the Company pursuant to the Notes (whether for principal, interest, Make-Whole Amount or otherwise) and this Agreement, including all indemnities, fees and expenses payable by the Company thereunder and (y) the prompt, full and faithful performance, observance and discharge by the Company of each and every covenant, agreement, undertaking and provision required pursuant to the Notes or this Agreement to be performed, observed or discharged by it (a “Guaranty Agreement”); and
(ii) deliver the following to each holder of a Note:
(A) an executed counterpart of such Guaranty;
(B) a certificate signed by an authorized responsible officer of such Person containing representations and warranties on behalf of such Person to the same effect, mutatis mutandis, as those contained in Sections 5.1, 5.2, 5.6, and 5.7 of this Agreement (but with respect to such Person and such Guaranty rather than the Company); Granite State Gas Transmission, Inc. Note Purchase Agreement
(C) all documents as may be reasonably requested by the Required Holders to evidence the due organization, continuing existence and, where applicable, good standing of such Person and the due authorization by all requisite action on the part of such Person of the Effective Date are execution and delivery of such Guaranty and the performance by such Person of its obligations thereunder; and
(D) an opinion of counsel reasonably satisfactory to the Required Holders covering such matters relating to such Person and such Guaranty as the Required Holders may reasonably request. In addition to the foregoing, if the Bank Credit Agreement shall contain (or be amended to contain) covenants, reporting obligations or events of default related to such Bank Guarantor, then the Company shall deliver an amendment to this Agreement to add similar covenants, reporting obligations and events of default related to such Bank Guarantor for the benefit of the holders of the Notes, and until such time as such amendment is delivered, this Agreement shall be deemed, without any action on the part of the parties hereto, to be amended to include such additional covenants, reporting obligations and events of default as if set forth herein in full. If the Bank Credit Agreement shall cease to contain such covenants, reporting obligations or events of default related to such Bank Guarantor, then the Company and the holders of the Notes shall deliver an amendment to this Agreement to remove such similar covenants, reporting obligations and events of default related to such Bank Guarantor, and until such time as such amendment is delivered, this Agreement shall be deemed, without any action on Schedule 10.14 the part of the parties hereto, to be amended to exclude such covenants, reporting obligations and events of default as if set forth herein in full.
(b) Upon At the election of the Company and by written notice to each holder of Notes, any Subsidiary incurring, issuing Guarantor that has provided a Guaranty under subparagraph (a) of this Section 9.8 may be discharged from all of its obligations and liabilities under its Guaranty and shall be automatically released from its obligations thereunder without the need for the execution or guaranteeing any debt securities or delivery of any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested document by the Administrative Agentholders, similar to provided that described (i) if such Guarantor is a guarantor or is otherwise liable for or in Section 5.01(brespect of any Material Credit Facility, then such Guarantor has been released and discharged (or will be released and discharged concurrently with the release of such Guarantor under its Guaranty) and under such Material Credit Facility, (cii) relating to at the authorization for, execution and delivery time of, and validity of such Significant Subsidiary’s obligations as a Guarantorafter giving effect to, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, no Default or Event of Default shall be existing, (iii) no amount is then due and payable under such Guaranty, (iv) if in connection with such Guarantor being released and discharged under any Material Credit Facility, any fee or other form of consideration is given to any holder of Indebtedness under such Material Credit Facility for such release, the Administrative Agent holders of the Notes shall execute receive equivalent consideration substantially concurrently therewith and deliver (v) each holder shall have received a certificate of a Responsible Officer certifying as to the Borrower matters set forth in clauses (i) through (iv). In the event of any such documents as the Borrower release, for purposes of Section 10.1, all Indebtedness of such Subsidiary shall reasonably request be deemed to evidence have been incurred concurrently with such release and discharge.release. Granite State Gas Transmission, Inc. Note Purchase Agreement
Appears in 1 contract
Guarantors. (a) The Guarantors as of the Effective Date date hereof are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any public debt securities issued or guaranteed by the Borrower or any other Material IndebtednessIndebtedness of the Borrower, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b5.01(c) and (cd) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all public debt securities issued or any other Material Indebtednessguaranteed by the Borrower, such Guarantor shall be deemed to be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and discharge. For the avoidance of doubt, it is agreed and understood that any release of any Specified Guarantor from its obligations under the Guarantee Agreement shall be subject to Section 10.01.
Appears in 1 contract
Guarantors. (a) The Guarantors as Company shall ensure that, subject to the Agreed Security Principles and subject to the below paragraphs of this Clause, all Material Companies (other than an Excluded Subsidiary) which are members of the Effective Date Group are Guarantors and that the aggregate of the earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Consolidated EBITDA) of the Guarantors and the US Guarantors and the aggregate gross assets of the Guarantors and the US Guarantors, (in each case calculated on an unconsolidated basis and excluding all intra-Group items) represents not less than 85 per cent. of Consolidated EBITDA and consolidated gross assets of all members of the Group (in each case not including the Excluded Subsidiaries), in each case calculated by reference to (A) the Original Financial Statements of the Company prior to the Closing Date; and (B) thereafter, with each set forth on Schedule 10.14 hereto.of Annual Financial Statements (the “Guarantor Coverage Test”).
(b) Upon The Company shall not have any Subsidiary incurring, issuing or guaranteeing obligation to procure that any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, member of the Borrower shall cause such Subsidiary Group becomes an Additional Guarantor unless the Annual Financial Statements demonstrate that the same would be necessary in order to execute comply with the Guarantee Agreement pursuant to an Addendum thereto in the form requirements of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agentthis Clause 27.13.
(c) The Borrower covenants and agrees If the Guarantor Coverage Test is not complied with as at the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws time of delivery of any jurisdiction within Compliance Certificate accompanying the United States. For the avoidance of doubtAnnual Financial Statements, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be no Default will occur provided that (subject to the provisions Agreed Security Principles), the Company procures that additional members of this Section 10.14(c)the Group become Guarantors within 30 Business Days (or such longer period agreed between the Agent (acting reasonably) and the Company) of the delivery of such Compliance Certificate so that, when retested at the end of such 30 Business Day period (or if agreed, such longer period) by reference to the Annual Financial Statements accompanying such Compliance Certificate, the Guarantor Coverage Test is complied with.
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all The Company need only perform its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and paragraph (ii) upon the termination or release of any Guarantor (without limiting clause (ia) above, to the extent it is not unlawful for the relevant person to become a Guarantor and that person becoming a Guarantor would not result in personal liability for that person’s directors or other management. Each Obligor must use, and must procure that the relevant person uses, all reasonable endeavours lawfully available to avoid any such unlawfulness or personal liability. This includes agreeing to a limit on the amount guaranteed. The Agent may (but shall not be obliged to) agree to such a limit if, in its opinion, to do so would avoid the relevant unlawfulness or personal liability.
(e) Any member of the Group (other than an Excluded Subsidiary) that becomes a Material Company and any Specified GuarantorMaterial Company (other than an Excluded Subsidiary) from its incurrenceacquired in accordance with this Agreement after the Closing Date shall become, issuance subject to the Agreed Security Principles, a Guarantor and guarantee grant Security as the Agent may reasonably require and shall accede to the Intercreditor Agreement within 30 Business Days (or such longer period agreed between the Agent (acting reasonably) and the Company) of delivery of any and all debt securities or Compliance Certificate accompanying the Annual Financial Statements.
(f) Nothing in this Agreement shall require any other Material Indebtedness, such Excluded Subsidiary to accede as a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents for so long as the Borrower shall reasonably request to evidence such release and dischargeit is an Excluded Subsidiary.
Appears in 1 contract
Sources: Revolving Facility Agreement (Manchester United PLC)
Guarantors. No more than 45 days after either (ai) The Guarantors as the designation of a Material Subsidiary of the Effective Date are set forth on Schedule 10.14 hereto.Borrower or (ii) the Borrower, directly or indirectly, acquires a Material Subsidiary:
(bi) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Material Subsidiary to duly execute and deliver to the Guarantee Agreement pursuant to Administrative Agent an Addendum thereto accession agreement in the form of Annex I attached as Schedule N;
(ii) the Borrower shall, and shall cause such Material Subsidiary to, duly execute and deliver to the Guarantee AgreementAdministrative Agent one or more Security Documents in order to charge all of such Material Subsidiary’s Secured Assets as security for its Secured Obligations and to charge all of such Material Subsidiary’s Shares as security for the Secured Obligations of the owner of such Shares;
(iii) the Borrower shall deliver, and in the case of a Significant Subsidiaryor cause to be delivered to, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.:
(cA) The Borrower covenants a duly certified copy of the constating documents and agrees with by-laws or similar documents of such Material Subsidiary;
(B) a certificate of status or good standing for such Material Subsidiary issued by the Lenders that appropriate governmental body or agency of the jurisdiction in which such Material Subsidiary is incorporated, if applicable;
(C) a duly certified copy of the resolution of the board of directors or shareholders of such Material Subsidiary authorizing it to execute, deliver and perform its obligations under each Specified Guarantor is, Finance Document to which such Material Subsidiary is a signatory and shall remain, an entity organized a duly certified copy of the resolution of the board of directors or shareholders (if required under the constating documents or by-laws of any jurisdiction within such Material Subsidiary) of such Material Subsidiary authorizing the United States. For the avoidance pledge of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor issued and be subject outstanding Shares to the provisions of this Section 10.14(c).Administrative Agent and any subsequent disposition thereof by the Administrative Agent in realizing on the security therein constituted by the relevant Security Documents;
(dD) Notwithstanding anything a certificate of an officer of such Material Subsidiary, in such capacity, setting forth specimen signatures of the individuals authorized to sign each Finance Document to which such Material Subsidiary is a signatory;
(E) a Disclosure Certificate signed by an officer of such Material Subsidiary;
(F) share certificates representing all of the issued and outstanding Shares of such Material Subsidiary (to the contrary contained herein extent such Shares are certificated), in each case duly endorsed in blank for transfer or in any other Loan Documentattached to duly executed stock transfers and powers of attorney or as otherwise required under Applicable Law;
(G) an opinion of such Material Subsidiary’s counsel addressed to the Finance Parties and their counsel, (i) upon relating to the Consummation status and capacity of such Material Subsidiary, the due authorization, execution and delivery and the validity and enforceability of the Freight Separationapplicable Finance Documents in, inter alia, the jurisdiction of incorporation of such Material Subsidiary and such other matters as the Administrative Agent may reasonably request; and
(H) requisite information to identify each such Material Subsidiary under the applicable “know your client” legislation, delivered sufficiently in advance for each Lender to complete such identification to their satisfaction;
(iv) the Borrower shall cause such additional Security Documents or amendments to existing Security Documents to be executed and delivered to permit the pledge of FedEx Corporation the Shares of such Material Subsidiary;
(v) the Administrative Agent and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor counsel shall be automatically satisfied, acting reasonably, that all necessary approvals, acknowledgements, directions and unconditionally released consents have been given and discharged from that all its obligations under relevant laws have been complied with in respect of all agreements and transactions referred to in this Agreement; and
(vi) except as otherwise provided in the Guarantee Agreement relevant Security Documents, all documents and instruments shall have been properly registered, recorded and filed in all places which, searches shall have been conducted in all jurisdictions which, and deliveries of all consents, approvals, acknowledgements, undertakings, directions, negotiable documents of title and other documents and instruments to the other Loan Documents without any further action required on Administrative Agent shall have been made which, in the part opinion of the Administrative Agent’s counsel, any Lender acting reasonably, are desirable or any required to make effective the Security and the intended first-ranking priority of such Security (subject to Permitted Liens which have priority by their nature) following the registration and recordation of such documents and instruments; For greater certainty, notwithstanding the aforementioned 45 day period which the Borrower has to cause such Material Subsidiary to, among other Person things, execute and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtednessdeliver a Guarantee, such Material Subsidiary shall, for all purposes of this Agreement, be a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee this Agreement without any further action required on the part of date it became a Material Subsidiary. Furthermore, in the event that the Borrower is working in good faith with the Administrative Agent or any Lender. At to comply with this Section 11.1(q) but is unable to deliver the request and sole expense of documentation required thereby within the Borrower following any such release and dischargerequired time period, the Administrative Agent shall execute and deliver to Agent, in its sole discretion, may extend the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargetime period.
Appears in 1 contract
Guarantors. (a) The Guarantors as Not later than the applicable Required Joinder Date following the date on which any of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon following conditions first applies to any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterthat is not a Guarantor, the Borrower shall cause such Subsidiary to execute the Guarantee and deliver an Accession Agreement pursuant to an Addendum thereto (or if at such time a Guaranty is not in effect, a Guaranty substantially in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(bExhibit E) and the items specified in subsection (cb) relating to below: (i) such Subsidiary Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of the authorization for, execution and delivery Borrower or any other Subsidiary of the Borrower (other than (w) Guarantees of, and validity other obligations in respect of, Indebtedness relating to construction loans in an aggregate amount for such Guarantees and other obligations not in excess of $200,000,000 at any time, (x) Nonrecourse Indebtedness Guarantees and Guarantees of the type described in clause (b) of the definition of Excluded Subsidiary, (y) obligations in respect Indebtedness of a Subsidiary in respect of which recourse is limited to pledges of Equity Interests in the Subsidiary that is the primary obligor under such Indebtedness and (z) any Guaranty of Indebtedness of any Subsidiary acquired or assumed in connection with an acquisition of such Significant Subsidiary so long as such Guaranty was in existence prior to the consummation of such acquisition and not incurred in in contemplation thereof); or (ii) (A) such Subsidiary owns an Eligible Property or other asset the value of which is included in the determination of Unencumbered Pool Value and (B) such Subsidiary’s obligations , or any other Subsidiary that directly or indirectly owns any Equity Interests in such Subsidiary, incurs or suffers to exist (whether as a Guarantorborrower, such documentation co-borrower, guarantor or otherwise) any Recourse Indebtedness.
(b) On the date that any Accession Agreement or Guaranty is required to be delivered pursuant to subsection (a) above, the Borrower shall cause each Subsidiary that is required to become a Guarantor to deliver, in addition to the Accession Agreement or Guaranty to which it is a party, each of the following in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, : (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of if requested by the Administrative Agent, any Lender or any other Person an opinion of counsel to such Subsidiary, addressed to the Administrative Agent and the Lenders; (ii) upon the termination certificate or release articles of any Guarantor (without limiting clause (i) aboveincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and discharge.comparable organizational
Appears in 1 contract
Sources: Credit Agreement (Washington Real Estate Investment Trust)
Guarantors. (a) The Guarantors as Within fifteen (15) Business Days after the date of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterPerson becoming a Required Guarantor, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I deliver to the Guarantee Agreement, and in Administrative Agent each of the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be following in form and substance reasonably satisfactory to the Administrative Agent: (A)(i) with respect to any owner of the Equity Interests of the Borrower, a joinder or amendment to the Parent Guaranty to unconditionally guaranty the Guaranteed Obligations hereunder in their entirety, and (ii) with respect to any such Subsidiary an Accession Agreement executed by such Required Guarantor, (B) the items that would have been delivered under subsections (vi) through (xiii) of Section 6.1.(a) and under Section 6.1.(f) if such Person had been a Required Guarantor on the Agreement Date and (C) prior to the Collateral Release Date, an executed Pledge Joinder Agreement; provided, however, promptly (and in any event within fifteen (15) Business Days) upon any Excluded Subsidiary ceasing to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement pursuant to this Section, as the case may be, such Subsidiary shall comply with the applicable provisions of this Section.
(b) The Borrower may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall release any Guarantor that is no longer a Required Guarantor, so long as (i) the Borrower shall certify in writing that no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) (as evidenced by a Compliance Certificate showing calculation in reasonable detail of such covenants on a pro forma basis after giving effect to such release); (ii) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date); (iii) the Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be reasonably acceptable to the Administrative Agent) prior to the requested date of release; and (iv) at least 100 Properties shall be Eligible Properties included in the calculation of Unencumbered Asset Value after giving effect to such release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
(c) The Borrower covenants and agrees with the Lenders may request in writing that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the release, and upon receipt of such request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver release, a Subsidiary Guarantor from the Pledge Agreement so long as: (i) such Subsidiary Guarantor owns no Eligible Property, nor any direct Equity Interest in any Subsidiary that owns an Eligible Property; (ii) such Subsidiary Guarantor is not otherwise required to be a party to the Borrower Pledge Agreement under the immediately preceding subsection (a), (iii) no Default or Event of Default shall then be in existence or would occur as a result of such documents release, including, without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 10.1. (as evidenced by a Compliance Certificate showing calculation in reasonable detail of such covenants on a pro forma basis after giving effect to such release); (iv) the representations and warranties made or deemed made by the Parent, the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall reasonably request be true and correct in all material respects (except that, to evidence the extent any representation or warranty is qualified by materiality or Material Adverse Effect or similar language, such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and dischargeeffect as if made on and as of such date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except that, to the extent any such representation or warranty is qualified by materiality or Material Adverse Effect or similar language, such representation or warranty shall have been true and correct in all respects) on and as of such earlier date); (v) the Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release; and (vi) at least 75 Properties shall be Eligible Properties included in the calculation of Unencumbered Asset Value after giving effect to such release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 1 contract
Sources: Credit Agreement (NETSTREIT Corp.)
Guarantors. (a) The Guarantors as Within 10 Business Days of any Person becoming a Material Subsidiary (other than an Excluded Subsidiary or a Subsidiary owning a Non-Controlled Property) after the Agreement Date, the Borrower shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (i) an Accession Agreement executed by such Material Subsidiary and (ii) the items that would have been delivered under subsections (iv) through (viii) of Section 5.1.(a) if such Material Subsidiary had been a Material Subsidiary on the Agreement Date; provided, however, promptly (and in any event within 10 Business Days) upon (x) any Excluded Subsidiary ceasing to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date are set forth on Schedule 10.14 heretoor delivering an Accession Agreement pursuant to this Section, as the case may be, or (y) a Subsidiary ceasing to own any Non-Controlled Properties, such Subsidiary shall comply with the provisions of this Section if then applicable.
(b) Upon The Borrower may, at its option, cause any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary that is not already a Guarantor to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, become a Guarantor by executing and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory delivering to the Administrative AgentAgent the items required to be delivered under the immediately preceding subsection (a).
(c) The Borrower covenants and agrees with the Lenders may request in writing that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the release, and upon receipt of such request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver release, a Guarantor from the Guaranty so long as: (i) such Guarantor (x) meets, or will meet simultaneously with its release from the Guaranty, all of the provisions of the definition of the term “Excluded Subsidiary” or (y) has ceased to be, or simultaneously with its release from the Guaranty will cease to be, a Material Subsidiary (whether pursuant to a transaction permitted under Section 9.6. or otherwise); (ii) such Guarantor is not otherwise required to be a party to the Borrower Guaranty under the immediately preceding subsection (a); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such documents release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (iv) the Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall reasonably 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 evidence such release and dischargerequest.
Appears in 1 contract
Sources: Term Loan Agreement (Federal Realty Investment Trust)
Guarantors. (a) The Guarantors Requirements to Become a Guarantor. Within 30 days (or such later date as agreed by the Administrative Agent) of the Effective Date are set forth date on Schedule 10.14 hereto.
(b) Upon any which a Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterBusiness Days after the date on which the Borrower shall fail to satisfy the Investment Grade Ratings Criteria, the Borrower shall cause each of its Subsidiaries that Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of the Borrower or of any other Subsidiary (other than (x) Guarantees of Indebtedness owed by such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto Borrower or a Guarantor ▇▇▇▇▇ (y) Guarantees of, and other obligations in respect of, Indebtedness (other than Indebtedness described in the form immediately preceding clause (x)) in an aggregate amount for any individual Subsidiarysuch Guarantees and other obligations not in excess of Annex I $350,000,000 at any time outstanding (such Indebtedness referred to the Guarantee Agreementin this clause (y), and “Designated Non-Guarantor Indebtedness”); provided such exception in the case of a Significant Subsidiary, to deliver documentation, clause (y) shall not apply to the extent requested that the aggregate amount of Designated Non-Guarantor Indebtedness of all Subsidiaries which are not Guarantors exceedsshall not exceed $350,000,000 in the aggregate), the Borrower shall deliver to Guarantee the Obligations by delivering to the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to Agent each of the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be following in form and substance reasonably satisfactory to the Administrative Agent.
: (ci) The Borrower covenants ▇▇▇ Guaranty Agreement or Accession Agreement, as applicable, executed by such Subsidiary and agrees with (ii) the Lenders items that each Specified would have been delivered under subsections (iii) through (vii) of Section 6.1(a) and under Section 6.1(f) if such Subsidiary had been required to become a Guarantor is, and shall remain, an entity organized under on the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified GuarantorAgreement Date; provided, that, that (x) the foregoing requirement to become a Guarantor shall not apply to GuarantiesGuarantees (A) by Excluded Subsidiaries of Indebtedness of Excluded Subsidiaries or (B) of exceptions to non-recourse liability described in accordance with the definition of “Specified GuarantorNonrecourse Indebtedness”, any Person into which such Specified Guarantor is merged or consolidated(y) a Foreign Subsidiary that only Guarantees, or otherwise becomes obligated in respect of, Indebtedness for which it is the direct borrower or issuer or Indebtedness of another Foreign Subsidiary shall not be required to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor under this Section 8.14 and (z) a Restricted JV Subsidiary that only Guarantees, or otherwise becomes obligated in respect of, Indebtedness for which it is the direct borrower or issuer or Indebtedness of another Restricted JV Subsidiary shall not be subject required to become a Guarantor under this Section 8.14. In addition, the Borrower shall be permitted, in its sole discretion, at any time to cause any Subsidiary to become a Guarantor at any time by delivering to the provisions Administrative Agent each of this Section 10.14(c).
(d) Notwithstanding anything the following in form and substance reasonably satisfactory to the contrary contained herein or in any other Loan Document, Administrative Agent: (i) upon the Consummation of the Freight Separationan Guaranty Agreement or Accession Agreement, each of FedEx Corporation and its subsidiaries (but notas applicable, for the avoidance of doubt, any executed by such Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination items that would have been delivered under subsections (iii) through (vii) of Section 6.1(a) and under Section 6.1(f) if such Subsidiary had been required to become a Guarantor on the Agreement Date. Notwithstanding the foregoing, (A) none of Crest Net Lease, Inc., its Deemed Taxable REIT Subsidiaries, ARCT TRS Corp. or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor Deemed Taxable REIT Subsidiaries shall be automatically required to become Guarantors and unconditionally released and discharged (B) upon written notice from all its obligations under the Guarantee Agreement without any further action required on the part of Borrower to the Administrative Agent or any Lender. At and the request and sole expense of Lenders, the Borrower following any such release may designate up to eight Taxable REIT Subsidiaries (in addition to Crest Net Lease, Inc. and dischargeARCT TRS Corp.) that shall not, the Administrative Agent and whose Deemed Taxable REIT Subsidiaries shall execute and deliver not, be required to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargebecome Guarantors.
Appears in 1 contract
Guarantors. (a) The Guarantors as of ParentSubject to Section 5.10, following the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurringAmendment No. 3 Closing Date, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Holdings and each Borrower shall cause such each of its Wholly-Owned Subsidiariesdirect or indirect Domestic Subsidiary to execute of Holdings (other than the Guarantee Agreement pursuant to an Addendum thereto in Exempt Subsidiaries) that either (x) Guarantees any Indebtedness for borrowed money (other than Permitted Indebtedness) of Parent, Holdings or the form of Annex I to the Guarantee AgreementCompany and Indebtedness permitted under Section 6.5 (excluding clauses (h), and in the case of a Significant Subsidiary(i), to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b(j) and (cl))) relating of Holdings, the Lead Borrower and/or any other Loan Party in an aggregate principal amount in excess of $500,000,000 or (y) is a borrower under or an issuer of or is a guarantor of (A) the Bridge Credit Agreement, (B) any Contemplated Debt Securities or the Specified Private Placement or (C) the Existing CF Notes150,000,000 to become a Guarantor hereunder (unless the Required Lenders otherwise consent) by (i) executing and delivering to the authorization forAdministrative Agent a Guaranty Agreement or a Guaranty Joinder Agreement or comparable guaranty documentation, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in each case in form and substance reasonably satisfactory to the Administrative Agent.
, within thirty (c30) The Borrower covenants days (or such longer time period if agreed to by the Administrative Agent in its reasonable discretion) after the requirements in clause (x) or (y) above shall first have been satisfied with respect to suchlatest of (x) the date on which such Person shall have Guaranteed such Indebtedness, (y) the date on which such Person shall have become a direct or indirect Domestic Subsidiary of Holdings and agrees (z) the date on which such Person shall no longer be an Exempt Subsidiary (it being understood that such Guaranty Agreement or a Guaranty Joinder Agreement or comparable guaranty documentation shall be accompanied by documentation with respect thereto substantially consistent with the Lenders that each Specified Guarantor isdocumentation delivered pursuant to Section 4.1(c), (d) and (e); Section 4.3(e), (f), (g) and (k); or Section 4.4(d), as applicable); provided that, notwithstanding anything in any Loan Document to the contrary, such Guaranty Agreement, Guaranty Joinder Agreement or comparable guaranty documentation shall, subject to the Agreed Guarantee Principles, be reasonably satisfactory to the Administrative Agent and shall remain, an entity organized under be limited to the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance extent necessary to comply with the definition of “Specified Guarantor”Agreed Guarantee Principles (including by limiting the maximum amount guaranteed), any Person into which limitations in such Specified Guarantor is merged agreement or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, documentation shall become a Specified Guarantor and in each case be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part reasonable satisfaction of the Administrative Agent. Upon execution and delivery of such Guaranty Agreement, any Lender Guaranty Joinder Agreement or any other comparable guaranty documentation, each such Person shall become a Guarantor hereunder and (ii) upon thereupon shall have all of the termination or release of any Guarantor (without limiting clause (i) aboverights, other than any Specified Guarantor) from its incurrencebenefits, issuance duties and guarantee of any and all debt securities or any other Material Indebtedness, obligations in such Guarantor shall be automatically and unconditionally released and discharged from all its obligations capacity under the Guarantee Agreement without any further action required on the part of Loan Documents. If requested by the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and dischargeAgent, the Administrative Agent shall execute receive an opinion or opinions of counsel (which may be from in-house counsel, provided that such opinion is in respect of New York law) for the Lead Borrower in form and deliver substance reasonably satisfactory to the Borrower Administrative Agent in respect of matters reasonably requested by the Administrative Agent relating to any such documents Guaranty Agreement, Guaranty Joinder Agreement or comparable guaranty documentation delivered pursuant to this Section 5.9(a), dated as of the Borrower shall reasonably request to evidence date of such release and dischargeGuaranty Agreement, Guaranty Joinder Agreement or comparable guaranty documentation, as applicable.
Appears in 1 contract
Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.)
Guarantors. (a) The Guarantors as If, during any fiscal quarter, (i) any Person becomes a Material Subsidiary (other than an Excluded Subsidiary, a Foreign Subsidiary or any Domestic Subsidiary that has no material assets other than stock and securities of one or more Foreign Subsidiary), (ii) any Material Subsidiary ceases to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date are set forth or delivering an Accession Agreement pursuant to this Section or (iii) any Person provides a Guaranty of the Senior Notes, then, not later than the date on Schedule 10.14 hereto.
which the Compliance Certificate is required to be delivered pursuant to Section 9.3. with respect to such fiscal quarter (b) Upon any Subsidiary incurringor if such fiscal quarter is the fourth fiscal quarter, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterthe fiscal year ending on the date of such fiscal quarter), the Borrower shall cause such Material Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I deliver to the Guarantee Agreement, and in Administrative Agent each of the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be following in form and substance reasonably satisfactory to the Administrative Agent.
: (cy) The Borrower covenants an Accession Agreement executed by such Subsidiary and agrees with (z) the Lenders items that each Specified Guarantor iswould have been delivered under subsections (iv) through (viii) and (xv) of Section 6.1.(a) and under Section 6.1.(f) if such Subsidiary had been a Material Subsidiary (other than an Excluded Subsidiary, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation a Foreign Subsidiary or any merger Domestic Subsidiary that has no material assets other than stock and securities of one or consolidation of more Foreign Subsidiary) on the Agreement Date. As provided in Section 4.1.(d), a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) Property that is to become an Unencumbered Property and that is owned by a Subsidiary that is not a Guarantor shall not be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, considered to be an Unencumbered Property until such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, time as the Administrative Agent shall execute have received the items referred to in Section 4.1.(d).
(b) The Borrower may request in writing that the Administrative Agent release, and deliver upon receipt of such request the Administrative Agent shall release, a Guarantor (other than the Parent) from the Guaranty so long as: (i) such Guarantor owns no Unencumbered Property, nor any direct or indirect equity interest in any Subsidiary that owns an Unencumbered Property; (ii) such Guarantor is not otherwise required to be a party to the Borrower Guaranty under the immediately preceding subsection (a); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such documents as release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 10.1.; (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall reasonably request to evidence be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and discharge.effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (v) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent in its sole discretion) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 1 contract
Guarantors. (a) The Guarantors as Not later than the applicable Required Joinder Date following the date on which any of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon following conditions first applies to any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterthat is not a Guarantor, the Borrower shall cause such Subsidiary to execute the Guarantee and deliver an Accession Agreement pursuant to an Addendum thereto (or if at such time a Guaranty is not in effect, a Guaranty substantially in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(bExhibit E) and the items specified in subsection (cb) relating to below:
(i) such Subsidiary Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of the authorization for, execution and delivery Borrower or any other Subsidiary of the Borrower (other than (w) Guarantees of, and validity other obligations in respect of, Indebtedness relating to construction loans in an aggregate amount for such Guarantees and other obligations not in excess of $200,000,000 at any time, (x) Nonrecourse Indebtedness Guarantees and Guarantees of the type described in clause (b) of the definition of Excluded Subsidiary, (y) obligations in respect Indebtedness of a Subsidiary in respect of which recourse is limited to pledges of Equity Interests in the Subsidiary that is the primary obligor under such Indebtedness and (z) any Guaranty of Indebtedness of any Subsidiary acquired or assumed in connection with an acquisition of such Significant Subsidiary so long as such Guaranty was in existence prior to the consummation of such acquisition and not incurred in in contemplation thereof); or
(ii) (A) such Subsidiary owns an Eligible Property or other asset the value of which is included in the determination of Unencumbered Pool Value and (B) such Subsidiary’s obligations , or any other Subsidiary that directly or indirectly owns any Equity Interests in such Subsidiary, incurs or suffers to exist (whether as a Guarantorborrower, such documentation co-borrower, guarantor or otherwise) any Recourse Indebtedness.
(b) On the date that any Accession Agreement or Guaranty is required to be delivered pursuant to subsection (a) above, the Borrower shall cause each Subsidiary that is required to become a Guarantor to deliver, in addition to the Accession Agreement or Guaranty to which it is a party, each of the following in form and substance reasonably satisfactory to the Administrative Agent.:
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of if requested by the Administrative Agent, any Lender or any other Person an opinion of counsel to such Subsidiary, addressed to the Administrative Agent and the Lenders;
(ii) upon the termination certificate or release articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each such Subsidiary certified as of a recent date by the Secretary of State of the state of formation of such Subsidiary;
(iii) a certificate of good standing (or certificate of similar meaning) with respect to each such Subsidiary issued as of a recent date by the Secretary of State of the state of formation of each such Subsidiary and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which each such Subsidiary is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(iv) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each such Subsidiary with respect to each of the officers of such Subsidiary authorized to execute and deliver the Loan Documents to which such Subsidiary is a party;
(v) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each such Subsidiary of (A) the by-laws of such Subsidiary, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any Guarantor other form of legal entity and (without limiting clause B) all corporate, partnership, member or other necessary action taken by such Subsidiary to authorize the execution, delivery and performance of the Loan Documents to which it is a party; and
(ivi) abovesuch other documents, other than any Specified Guarantor) from its incurrence, issuance agreements and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of instruments as the Administrative Agent or any LenderLender through the Administrative Agent, may reasonably request. At the request and sole expense Until a Subsidiary that is required to become a Guarantor under clause (ii) of the Borrower following any such release immediately preceding subsection (a) becomes a Guarantor, and discharge, delivers to the Administrative Agent the items required to be delivered pursuant to this subsection (b), (i) no Eligible Property owned or leased by such Subsidiary shall execute be included in calculations of Unencumbered Pool Value and deliver (ii) no income attributable to the Borrower any Eligible Property owned or leased by such documents as the Borrower Subsidiary shall reasonably request to evidence such release and dischargebe included in calculations of Unencumbered NOI.
Appears in 1 contract
Sources: Credit Agreement (Washington Real Estate Investment Trust)
Guarantors. (a) The Guarantors as of Each Guarantor may not consolidate, amalgamate or merge with or into or wind up into (whether or not the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified applicable Guarantor is merged or consolidatedthe surviving entity), or to which sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its assets are soldproperties or assets, transferred in one or disposedmore related transactions, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation Issuer unless:
(i) the applicable Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the laws of the Freight Separationjurisdiction of organization of such Guarantor or under the laws of a Permitted Jurisdiction (such Guarantor or such Person, as the case may be, being herein called “Successor Guarantor”);
(ii) the Successor Guarantor, if other than the applicable Guarantor, expressly assumes all the obligations of such Guarantor under the Notes and this Indenture pursuant to a supplemental indenture;
(iii) immediately after giving effect to such transaction, no Default or Event of Default, if applicable, shall have occurred and be continuing;
(iv) the Successor Guarantor, if other than the applicable Guarantor, shall have delivered, or cause to be delivered, to the Trustee an Opinion of Counsel (which may contain customary exceptions) stating that is a the Guarantee to be provided by such Successor Guarantor has been duly authorized, executed and delivered by such Successor Guarantor and constitutes the legal, valid and enforceable obligation of such Successor Guarantor; and
(v) the Successor Guarantor shall have delivered, or cause to be delivered, to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such supplemental indenture, if any, comply with this Indenture; provided, however, that, notwithstanding the foregoing clause (iii), (A) any Subsidiary of the Issuer may consolidate or amalgamate with or merge with or into a Guarantor; (B) any Guarantor may consolidate or amalgamate with or merge with or into or wind up into an Affiliate of such Guarantor solely for the purpose of reincorporating such Guarantor in a Permitted Jurisdiction; and (C) any Guarantor may be converted, reorganized or reconstituted in a Permitted Jurisdiction.
(b) The Successor Guarantor (if other than the applicable Guarantor) will succeed to, and be substituted for, the applicable Guarantor under this Indenture and such Guarantor’s Guarantee and in such event the applicable Guarantor will automatically and unconditionally be released and discharged from all its obligations obligation under the Guarantee Agreement this Indenture and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified such Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and discharge’s Guarantee.
Appears in 1 contract
Guarantors. (a) The Guarantors as Not later than the applicable Required Joinder Date following the date on which any of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon following conditions first applies to any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterthat is not a Guarantor, the Borrower shall cause such Subsidiary to execute the Guarantee and deliver an Accession Agreement pursuant to an Addendum thereto (or if at such time a Guaranty is not in effect, a Guaranty substantially in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(bExhibit B) and the items specified in subsection (cb) relating to below:
(i) such Subsidiary Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of the authorization for, execution and delivery Borrower or any other Subsidiary of the Borrower (other than (w) Guarantees of, and validity other obligations in respect of, Indebtedness relating to construction loans in an aggregate amount for such Guarantees and other obligations not in excess of $200,000,000 at any time, (x) Nonrecourse Indebtedness Guarantees and Guarantees of the type described in clause (b) of the definition of Excluded Subsidiary, (y) obligations in respect Indebtedness of a Subsidiary in respect of which recourse is limited to pledges of Equity Interests in the Subsidiary that is the primary obligor under such Indebtedness and (z) any Guaranty of Indebtedness of any Subsidiary acquired or assumed in connection with an acquisition of such Significant Subsidiary so long as such Guaranty was in existence prior to the consummation of such acquisition and not incurred in in contemplation thereof); or
(ii) (A) such Subsidiary owns an Eligible Property or other asset the value of which is included in the determination of Unencumbered Pool Value and (B) such Subsidiary’s obligations , or any other Subsidiary that directly or indirectly owns any Equity Interests in such Subsidiary, incurs or suffers to exist (whether as a Guarantorborrower, such documentation co-borrower, guarantor or otherwise) any Recourse Indebtedness.
(b) On the date that any Accession Agreement or Guaranty is required to be delivered pursuant to subsection (a) above, the Borrower shall cause each Subsidiary that is required to become a Guarantor to deliver, in addition to the Accession Agreement or Guaranty to which it is a party, each of the following in form and substance reasonably satisfactory to the Administrative Agent.:
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of if requested by the Administrative Agent, any Lender or any other Person an opinion of counsel to such Subsidiary, addressed to the Administrative Agent and the Lenders;
(ii) upon the termination certificate or release articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each such Subsidiary certified as of a recent date by the Secretary of State of the state of formation of such Subsidiary;
(iii) a certificate of good standing (or certificate of similar meaning) with respect to each such Subsidiary issued as of a recent date by the Secretary of State of the state of formation of each such Subsidiary and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as Execution Version applicable) of each state in which each such Subsidiary is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(iv) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each such Subsidiary with respect to each of the officers of such Subsidiary authorized to execute and deliver the Loan Documents to which such Subsidiary is a party;
(v) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each such Subsidiary of (A) the by-laws of such Subsidiary, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any Guarantor other form of legal entity and (without limiting clause B) all corporate, partnership, member or other necessary action taken by such Subsidiary to authorize the execution, delivery and performance of the Loan Documents to which it is a party; and
(ivi) abovesuch other documents, other than any Specified Guarantor) from its incurrence, issuance agreements and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of instruments as the Administrative Agent or any LenderLender through the Administrative Agent, may reasonably request. At the request and sole expense Until a Subsidiary that is required to become a Guarantor under clause (ii) of the Borrower following any such release immediately preceding subsection (a) becomes a Guarantor, and discharge, delivers to the Administrative Agent the items required to be delivered pursuant to this subsection (b), (i) no Eligible Property owned or leased by such Subsidiary shall execute be included in calculations of Unencumbered Pool Value and deliver (ii) no income attributable to the Borrower any Eligible Property owned or leased by such documents as the Borrower Subsidiary shall reasonably request to evidence such release and dischargebe included in calculations of Unencumbered NOI.
Appears in 1 contract
Sources: Term Loan Agreement (Washington Real Estate Investment Trust)
Guarantors. (a) The Guarantors as Within 10 Business Days of any Person becoming a Material Subsidiary (other than an Excluded Subsidiary or a Subsidiary owning a Non-Controlled Property) after the Agreement Date, the Borrower shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (i) an Accession Agreement executed by such Material Subsidiary and (ii) the items that would have been delivered under subsections (iv) through (viii) of Section 5.1.(a) if such Material Subsidiary had been a Material Subsidiary on the Agreement Date; provided, however, promptly (and in any event within 10 Business Days) upon (x) any Excluded Subsidiary ceasing to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date are set forth on Schedule 10.14 heretoor delivering an Accession Agreement pursuant to this Section, as the case may be, or (y) a Subsidiary ceasing to own any Non-Controlled Properties, such Subsidiary shall comply with the provisions of this Section if then applicable.
(b) Upon The Borrower may, at its option, cause any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary that is not already a Guarantor to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, become a Guarantor by executing and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory delivering to the Administrative AgentAgent the items required to be delivered under the immediately preceding subsection (a).
(c) The Borrower covenants and agrees with the Lenders may request in writing that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the release, and upon receipt of such request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver release, a Guarantor from the Guaranty so long as: (i) such Guarantor (x) meets, or will meet simultaneously with its release from the Guaranty, all of the provisions of the definition of the term “Excluded Subsidiary” or (y) has ceased to be, or simultaneously with its release from the Guaranty will cease to be, a Material Subsidiary (whether pursuant to a transaction permitted under Section 9.6. or otherwise); (ii) such Guarantor is not otherwise required to be a party to the Borrower Guaranty under the immediately preceding subsection (a); (ii) no Default or Event of Default shall then be in existence or would occur as a result of such documents release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (iii) the Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall reasonably 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 evidence such release and dischargerequest.
Appears in 1 contract
Guarantors. (a) The Guarantors as Borrower shall cause each of its Domestic Subsidiaries to guarantee pursuant to the Guaranty Agreement or supplement thereto the Secured Obligations. In furtherance of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterabove, the Borrower shall promptly (and in any event within forty-five (45) days thereof)
(i) provide written notice to the Administrative Agent upon any Person becoming a Domestic Subsidiary, setting forth information in reasonable detail describing all of the assets of such Person, (ii) cause such Subsidiary Person to execute a supplement to the Guarantee Guaranty Agreement and such other Collateral Documents as are necessary for the Borrower and its Subsidiaries to comply with Section 6.26, (iii) cause the Applicable Pledge Percentage of the issued and outstanding equity interests of such Person to be delivered to the Collateral Agent (together with undated stock powers signed in blank, if applicable) and pledged to the Collateral Agent pursuant to an Addendum thereto appropriate pledge agreement(s) in substantially the form of Annex I the Pledge and Security Agreement (or joinder or other supplement thereto) and otherwise in form reasonably acceptable to the Guarantee AgreementCollateral Agent and (iv) deliver such other documentation as the Collateral Agent may reasonably request in connection with the foregoing, including, without limitation, certified resolutions and in the case other authority documents of a Significant Subsidiary, to deliver documentationsuch Person and, to the extent requested by the Administrative Collateral Agent, similar favorable opinions of counsel to that described such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above), all in Section 5.01(b) form, content and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance scope reasonably satisfactory to the Administrative Collateral Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, however, that in respect of subclause (iii), no Credit Party shall be required to pledge (w) the equity interests of Roto-Rooter of Canada, Ltd., Chemed Capital Trust or VNF, (x) more than 40% of the equity interests of RR Plumbing Services Corporation, (y) more than 49% of the equity interests of Complete Plumbing Services Inc., or (z) more than 80% of the equity interests of Nurotoco of New Jersey, Inc.; provided, further, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject except to the provisions of extent necessary to satisfy any licensing requirement under applicable law with respect to the Borrower's or any Subsidiary's business, the Borrower will not permit, nor will it permit any other Credit Party to, grant a security interest in, pledge or deliver to any non-Credit Party those equity interests that are not pledged or delivered to the Collateral Agent pursuant to this Section 10.14(c)6.25.
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and discharge.
Appears in 1 contract
Sources: Credit Agreement (Roto-Rooter Inc)
Guarantors. (a) The Guarantors as of the Effective Date date hereof are set forth on Schedule 10.14 9.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any public debt securities or any other Material Indebtednessissued by the Borrower, within thirty 30 (30thirty) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(bSections 4.01(c) and (cd) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c9.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, consolidated shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c9.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all public debt securities or any other Material Indebtednessissued by the Borrower, such Guarantor shall be deemed to be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and discharge. For the avoidance of doubt, it is agreed and understood that any release of any Specified Guarantor from its obligations under the Guarantee Agreement shall be subject to Section 9.01.
Appears in 1 contract
Guarantors. (a) The Guarantors as of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material IndebtednessSubject to Section 6.10(b), within thirty (30) days thereafter(or such longer period as the Administrative Agent may agree to in its sole discretion) following (A) the formation or acquisition of any direct or indirect Domestic Subsidiary after the Closing Date and (B) the end of each fiscal quarter of the Borrower, the Borrower shall cause such each non-Credit Party Domestic Subsidiary that is not an Immaterial Subsidiary or an Excluded Subsidiary to execute provide to the Guarantee Administrative Agent, for the benefit of the Lender Group, (i) a joinder supplement to this Agreement pursuant to an Addendum thereto substantially in the form of Annex I Exhibit H (each, a “Joinder Supplement”), pursuant to the Guarantee which each such Domestic Subsidiary shall agree to join as a Guarantor and as a Credit Party under this Agreement, and in the case of a Significant Subsidiary, to deliver (ii) all other documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(bincluding opinion(s) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably counsel satisfactory to the Administrative Agent, which in its reasonable opinion is appropriate with respect to such formation, if applicable, and the execution and delivery of the applicable documentation referred to above, and all documentation requested by the Lenders to comply with their “know your customer” obligations under the USA Patriot Act or otherwise imposed pursuant to anti-money laundering rules and regulations. Any document, agreement or instrument executed or issued pursuant to this Section 6.10 shall be a “Loan Document” for purposes of this Agreement.
(b) Immaterial Subsidiaries shall not be required to become Credit Parties pursuant to Section 6.10(a), provided, that if the assets of all such Immaterial Subsidiaries and all Excluded Subsidiaries at any time of determination exceeds 10% of Consolidated Tangible Assets at the end of the most recently ended fiscal quarter, for which financial statements have been delivered pursuant to Section 6.1 or 6.2, the Borrower shall cause non-Credit Party Immaterial Subsidiaries to become Credit Parties in accordance with Section 6.10(a) until either (A) the matter described in the proviso above ceases to be true after giving effect to any such Immaterial Subsidiary or Immaterial Subsidiaries becoming a Credit Party or (B) all Immaterial Subsidiaries are Credit Parties.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of may designate any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Immaterial Subsidiary of the Borrower following Consummation of the Freight Separation) that is not a Guarantor Credit Party as a Credit Party from time to time, so long as such Immaterial Subsidiary shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of have provided to the Administrative Agent, any Lender or any other Person and (ii) upon for the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part benefit of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and dischargeLender Group, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargeitems specified in Section 6.10(a).
Appears in 1 contract
Guarantors. (a) The Guarantors as Within fifteen (15) Business Days after the date of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterPerson becoming a Required Guarantor, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I deliver to the Guarantee Agreement, and in Administrative Agent each of the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be following in form and substance reasonably satisfactory to the Administrative Agent.: (A)
(ci) The Borrower covenants and agrees with respect to any owner of the Lenders that each Specified Guarantor isEquity Interests of the Borrower, a joinder or amendment to the Parent Guaranty to unconditionally guaranty the Guaranteed Obligations hereunder in their entirety, and shall remain, (ii) with respect to any such Subsidiary an entity organized Accession Agreement executed by such Required Guarantor and (B) the items that would have been delivered under subsections (v) through (xi) of Section 6.1.(a) and under Section 6.1.(e) if such Person had been a Required Guarantor on the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified GuarantorAgreement Date; provided, thathowever, promptly (and in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or event within fifteen (15) Business Days) upon any Excluded Subsidiary ceasing to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement pursuant to this Section, as the case may be, such Subsidiary shall comply with the applicable provisions of this Section 10.14(c)Section.
(db) Notwithstanding anything to The Borrower may request in writing that the contrary contained herein or in Administrative Agent release, and upon receipt of such request the Administrative Agent shall release any other Loan DocumentGuarantor that is no longer a Required Guarantor, so long as (i) upon the Consummation Borrower shall certify in writing that no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the Freight Separation, each covenants contained in Section 10.1. (as evidenced by a Compliance Certificate showing calculation in reasonable detail of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is such covenants on a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person pro forma basis after giving effect to such release); and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver have received such written request at least ten (10) Business Days (or such shorter period as may be reasonably acceptable to the Borrower such documents as Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall reasonably 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 evidence such release and dischargerequest.
Appears in 1 contract
Guarantors. The Borrower will, and will cause each of its Subsidiaries to, take such action from time to time as shall be necessary to ensure that all Subsidiaries (aother than Excluded Subsidiaries) The Guarantors as of such Loan Party are “Guarantors” hereunder and the other Loan Documents. Without limiting the generality of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon foregoing, in the event that the Borrower or any Subsidiary incurringshall form or acquire any new Domestic Subsidiary that shall constitute a Subsidiary hereunder, issuing or guaranteeing any debt securities or any other Material Indebtednesssuch Loan Party will cause such new Domestic Subsidiary to, within thirty 60 days (30) days thereafter, the Borrower shall cause or such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by longer period as the Administrative Agent, similar in its sole discretion, may designate) after such formation or acquisition:
(i) become a “Guarantor” hereunder pursuant to that described in Section 5.01(b) a Guarantee Assumption Agreement, and (c) relating execute joinders to the authorization for, execution Security Agreement and delivery of, and validity other Security Documents thereby granting the Administrative Agent a first priority lien on all of such Significant SubsidiaryGuarantor’s obligations as a assets (other than Equity Interests in any Excluded Subsidiary of such Guarantor, which shall be governed by Section 5.10(b)) as collateral security for the Obligations, in form and substance reasonably satisfactory to the Administrative Agent;
(ii) cause such documentation new Domestic Subsidiary to take such action (including delivering such certificates evidencing such Equity Interests, executing and delivering such UCC financing statements and, if the fair market value of such real property is equal to or greater than $1,000,000, subject to the following proviso, executing and delivering mortgages or deeds of trust covering the real property and fixtures owned or leased by such Subsidiary) as shall be necessary to create and perfect valid and enforceable first-priority Liens on substantially all of the property of such new Subsidiary as collateral security for the obligations of such new Subsidiary under the Loan Documents; and
(iii) deliver such proof of corporate action, incumbency of officers, opinions of counsel and other documents as is consistent with those delivered by each Loan Party pursuant to Section 4.01 on the Effective Date or as the Administrative Agent shall have reasonably requested, all in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and discharge.
Appears in 1 contract
Sources: Credit Agreement (GoPro, Inc.)
Guarantors. (a) The Guarantors as If, during any fiscal quarter, (i) any Person becomes a Material Subsidiary (other than an Excluded Subsidiary, a Foreign Subsidiary or any Domestic Subsidiary that has no material assets other than stock and securities of one or more Foreign Subsidiary), (ii) any Material Subsidiary ceases to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date are set forth or delivering an Accession Agreement pursuant to this Section or (iii) any Person provides a Guaranty of the Senior Notes, then, not later than the date on Schedule 10.14 hereto.
which the Compliance Certificate is required to be delivered pursuant to Section 9.3. with respect to such fiscal quarter (b) Upon any Subsidiary incurringor if such fiscal quarter is the fourth fiscal quarter, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterthe fiscal year ending on the date of such fiscal quarter), the Borrower shall cause such Material Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I deliver to the Guarantee Agreement, and in Administrative Agent each of the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be following in form and substance reasonably satisfactory to the Administrative Agent.
: (cy) The Borrower covenants an Accession Agreement executed by such Subsidiary and agrees with (z) the Lenders items that each Specified Guarantor iswould have been delivered under subsections (iv) through (viii) and (xv) of Section 6.1.(a) and under Section 6.1.(f) if such Subsidiary had been a Material Subsidiary (other than an Excluded Subsidiary, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation a Foreign Subsidiary or any merger Domestic Subsidiary that has no material assets other than stock and securities of one or consolidation of more Foreign Subsidiary) on the Agreement Date. As provided in Section 4.1.(d), a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) Property that is to become an Unencumbered Property and that is owned by a Subsidiary that is not a Guarantor shall not be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, considered to be an Unencumbered Property until such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, time as the Administrative Agent shall execute have received the items referred to in Section 4.1.(d).
(b) The Borrower may request in writing that the Administrative Agent release, and deliver upon receipt of such request the Administrative Agent shall release, a Guarantor (other than the Parent) from the Guaranty so long as: (i) such Guarantor owns no Unencumbered Property, nor any direct or indirect equity interest in any Subsidiary that owns an Unencumbered Property; (ii) such Guarantor is not otherwise required to be a party to the Borrower Guaranty under the immediately preceding subsection (a); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such documents as release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 10.1.; (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall reasonably request to evidence be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and discharge.effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (v) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent in its sole discretion) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 1 contract
Guarantors. (a) The Guarantors as direct parent company of the Effective Date are set forth on Schedule 10.14 hereto.
Company (b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b“Parent”) and all of Parent’s present and future direct and indirect subsidiaries (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantorother than Borrower); provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(csection hereof entitled “Collateral” and in particular the provision therein regarding intellectual property, subsidiaries that are controlled foreign corporations (each a “CFC”) will not be required to be Guarantors if to do so could reasonably be expected to (i) result in adverse tax consequences to Parent and its subsidiaries, (ii) result in costs to Parent and its subsidiaries that are disproportionately large in relation to the benefit to Lenders, as determined by the Lenders in their reasonable discretion, or (iii) be prevented or significantly impaired by foreign laws or regulations (such Guarantors, together with Borrower, each a “Loan Party” and collectively, the “Loan Parties”).
(d) Notwithstanding anything . Anything to the contrary contained herein in the Fifth Amended and Restated Commitment Letter or in any this Fifth Amended and Restated Term Sheet notwithstanding, the Lenders reserve the right to amend the structure of the Facility to obtain first priority perfected security interests on assets (including, without limitation, accounts receivable, cash, deposit accounts, and intellectual property) of subsidiaries organized under laws other Loan Documentthan the laws of the United States. Lenders and Agent: WFF, CapSource and such other lenders designated by WFF and/or CapSource with the written consent of Agent (such consent not to be (i) upon the Consummation of the Freight Separationunreasonably withheld or delayed, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon required in connection with an assignment by a Lender to one of its affiliates or an approved fund under common control with a Lender, and (iii) required in connection with an assignment for collateral purposes) (the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor “Lenders”). WFF shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on administrative agent for the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any Lenders (in such release and dischargecapacity, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and discharge“Agent”).
Appears in 1 contract
Sources: Commitment Letter (STG Ugp, LLC)
Guarantors. (a) The Guarantors Company will cause any Person that guarantees or otherwise becomes liable at any time, whether as a borrower or an additional or co-borrower or otherwise, for any Indebtedness of the Effective Date are set forth Company under any Material Credit Facility to concurrently therewith:
(i) enter into an agreement in form and substance satisfactory to the Required Holders providing for the guaranty by such Person, on Schedule 10.14 heretoa joint and several basis with all other such Persons, of (x) the prompt payment in full when due of all amounts payable by the Company pursuant to the Notes (whether for principal, interest, Make-Whole Amount or otherwise) and this Agreement, including all indemnities, fees and expenses payable by the Company thereunder and (y) the prompt, full and faithful performance, observance and discharge by the Company of each and every covenant, agreement, undertaking and provision required pursuant to the Notes or this Agreement to be performed, observed or discharged by it (a “Guaranty Agreement”); and
(ii) deliver the following to each holder of a Note:
(A) an executed counterpart of such Guaranty Agreement;
(B) a certificate signed by an authorized responsible officer of such Person containing representations and warranties on behalf of such Person to the same effect, mutatis mutandis, as those contained in Sections 5.1, 5.2, 5.6, and 5.7 of this Agreement (but with respect to such Person and such Guaranty Agreement rather than the Company);
(C) all documents as may be reasonably requested by the Required Holders to evidence the due organization, continuing existence and, where applicable, good standing of such Person and the due authorization by all requisite action on the part of such Person of the execution and delivery of such Guaranty Agreement and the performance by such Person of its obligations thereunder; and
(D) an opinion of counsel reasonably satisfactory to the Required Holders covering such matters relating to such Person and such Guaranty Agreement as the Required Holders may reasonably request.
(b) Upon At the election of the Company and by written notice to each holder of Notes, any Subsidiary incurring, issuing Guarantor may be discharged from all of its obligations and liabilities under its Guaranty Agreement and shall be automatically released from its obligations thereunder without the need for the execution or guaranteeing any debt securities or delivery of any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested document by the Administrative Agentholders, similar to provided that described (i) if such Guarantor is or was a guarantor or is or was otherwise liable for or in Section 5.01(brespect of any Material Credit Facility, then such Guarantor has been released and discharged (or will be released and discharged concurrently with the release of such Guarantor under its Guaranty Agreement) and under such Material Credit Facility, (cii) relating to at the authorization for, execution and delivery time of, and validity of such Significant Subsidiary’s obligations as a Guarantorafter giving effect to, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, no Default or Event of Default shall be existing, (iii) no amount is then due and payable under such Guaranty Agreement, (iv) if in connection with such Guarantor being released and discharged under any Material Credit Facility, any fee or other form of consideration is given to any holder of Indebtedness under such Material Credit Facility for such release, the Administrative Agent holders of the Notes shall execute receive equivalent consideration substantially concurrently therewith and deliver (v) each holder shall have received a certificate of a Responsible Officer certifying as to the Borrower matters set forth in clauses (i) through (iv). In the event of any such documents as the Borrower release, for purposes of Section 10.7, all Indebtedness of such Person shall reasonably request be deemed to evidence have been incurred by such release and dischargePerson concurrently with such release.
Appears in 1 contract
Guarantors. The Yucaipa Guarantors and the Fortress Guarantors, including their successors and assigns, jointly and severally, absolutely, irrevocably and unconditionally guarantee, as primary obligors and not merely as sureties, Purchaser’s performance of its obligation to consummate the Closing on the Closing Date and the due and punctual payment of the Cash Purchase Price (a) the “Guaranteed Obligation”). In no event shall the Guarantors be obligated to make payments under this Section 8.13 in an aggregate amount in excess of the Cash Purchase Price. The Guarantors as further agree that their obligations under this Section 8.13 are not conditioned or contingent upon the pursuit of any remedies against Purchaser, and such obligations are not limited or affected by any circumstance that might otherwise limit or affect the Effective Date obligations of a surety or guarantor, all of which are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, hereby waived by the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I Guarantors to the Guarantee fullest extent permitted by Law. Each Guarantor further agrees that the Guaranteed Obligation may be amended, modified or renewed by Purchaser, in whole or in part, without notice to or further assent from such Guarantor, and that such Guarantor will remain bound by its obligations under this Section 8.13 notwithstanding any amendment, modification or renewal of any Guaranteed Obligation by Purchaser. Each Guarantor acknowledges that (i) Yucaipa Guarantor is an Affiliate of Purchaser and Fortress Guarantor owns warrants to acquire an equity interest in Purchaser, (ii) such Guarantor is benefiting from the transactions contemplated by this Agreement, (iii) the Sellers are relying on such Guarantor’s obligations under this Section 8.13 in connection with entering into this Agreement, (iv) a sale or transfer of any membership interest in Purchaser by such Guarantor shall not relieve such Guarantor of its obligations under this Section 8.13, (v) such Guarantor has all requisite power and in the case of a Significant Subsidiary, authority to deliver documentation, enter into this Agreement (solely with respect to the extent requested by the Administrative Agent, similar to that described in this Section 5.01(b8.13) and to carry out its obligations under this Section 8.13, (cvi) relating such Guarantor’s obligations under this Section 8.13 constitute the legal, valid, and binding obligations of such Guarantor, enforceable against such Guarantor in accordance with their terms, except as enforceability may be limited by applicable equitable principles or by bankruptcy, insolvency, reorganization, moratorium or similar laws in effect from time to time affecting the authorization forenforcement of creditors’ rights generally, (vii) the execution and delivery of, and validity by such Guarantor of such Significant Subsidiary’s obligations as a Guarantor, such documentation this Agreement (solely with respect to be in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c8.13) shall not prohibit and the Freight Separation or any merger or consolidation performance by such Guarantor of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under this Section 8.13 have been duly authorized and approved by all necessary action of each Guarantor, including any required proceedings of its shareholders, members, managers, partners, officers and directors, and does not require any further authorization or consent of such Guarantor and (viii) the Guarantee execution and delivery by such Guarantor of this Agreement (solely with respect to this Section 8.13), and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, performance by such Guarantor shall be automatically and unconditionally released and discharged from all of its obligations under the Guarantee Agreement without this Section 8.13 do not (A) conflict with or violate any further action required on the part provision of the Administrative Agent organizational documents of such Guarantor, (B) with or without the giving of notice or the passage of time, or both, result in a breach of, or violate, or conflict with, or constitute a default under, or permit the termination of, or cause or permit acceleration under, any material Contract to which such Guarantor is a party or subject or (C) violate any Law or any Lenderorder, judgment, decree or award of any Governmental Body to or by which such Guarantors is subject or bound. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver Each Guarantor waives all notices with respect to the Borrower such documents as Guaranteed Obligation, including presentment to Purchaser with respect to the Borrower shall reasonably request to evidence such release and dischargeGuaranteed Obligation.
Appears in 1 contract
Sources: Asset Purchase Agreement (Emmis Communications Corp)
Guarantors. (a) The Guarantors as Subject to Section 8.14(c), within one hundred twenty (120) days, unless extended by Administrative Agent in its sole discretion, of any Person becoming a Material Subsidiary (other than an Excluded Subsidiary) after the Effective Date are set forth on Schedule 10.14 hereto.
or in connection with the addition of a Property to the Unencumbered Pool that is owned by a Subsidiary not already a Guarantor (b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterBorrower), the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I deliver to the Guarantee Agreement, and in Administrative Agent each of the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be following in form and substance reasonably satisfactory to the Administrative Agent: (A) an Accession Agreement executed by such Subsidiary and (B) the items that would have been delivered under subsections (iv)(A), (v) through (viii), and (xiv) through (xvi), of Section 6.1(a) if such Subsidiary had been a Material Subsidiary on the Effective Date; provided, however, promptly (and in any event within one hundred twenty (120) days, unless extended by Administrative Agent in its sole discretion) upon any Excluded Subsidiary ceasing to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement pursuant to this Section, as the case may be, such Subsidiary shall comply with the provisions of this Section. For the purpose of clarity, each Unencumbered Pool Property must be owned by a Guarantor or the Borrower, except during any period in which the owner of any Unencumbered Pool Property is not required to provide a Guaranty pursuant to Section 8.14(c), in which case such Unencumbered Pool Property need only be owned by a Subsidiary of the Borrower or the Borrower.
(b) The Borrower may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall release, a Guarantor from the Guaranty so long as: (i) subject to Section 8.14(c), such Guarantor does not own (or will not own as of such release) any Unencumbered Pool Property, nor any direct or indirect equity interest in any Subsidiary that owns an Unencumbered Pool Property; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) or the last two sentences of the following subsection (c); (iii) no Default or Event of Default then exists or would occur as a result of such release, including, without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 10.1; (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except to the extent otherwise qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except to the extent otherwise qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents or waived or consented to by the applicable Lenders in accordance with the provisions of Section 13.7; and (v) the Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein in this Section 8.14 above, for so long as ▇▇▇▇▇▇ REIT maintains an Investment Grade Rating, no Material Subsidiary or in owner of any Unencumbered Pool Property (or any other Loan DocumentSubsidiary) shall be required to become a Guarantor and any Material Subsidiary or owner of any Unencumbered Pool Property (or any other Subsidiary) that has provided a Guaranty that is eligible to be released from such Guaranty pursuant to clauses (iii), (iiv) upon the Consummation and (v) of the Freight Separation, each of FedEx Corporation and its subsidiaries preceding subsection (but notb) may be released from the Guaranty (which, for the avoidance of doubt, shall in no event include ▇▇▇▇▇▇ REIT), unless such Person, or any Subsidiary that directly or indirectly owns any Equity Interest in such Person, provides a Guaranty of Indebtedness to a Person other than to Administrative Agent, for the benefit of the Guarantied Parties (as defined in the Guaranty). In the event Borrower following Consummation fails to maintain an Investment Grade Rating, then each Material Subsidiary (other than an Excluded Subsidiary) and each owner of the Freight Separation) any Unencumbered Pool Property that is not then a Guarantor that is a party to the Guaranty hereunder shall comply with all the terms and conditions of Section 8.14(a) above within thirty (30) days of such failure, unless extended by Administrative Agent in its sole discretion. In the event a Material Subsidiary (other than an Excluded Subsidiary) or an owner of any Unencumbered Pool Property or any Subsidiary that directly or indirectly owns any Equity Interest in such owner, that is not then a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under that is party to the Guarantee Agreement and the Guaranty hereunder provides a Guaranty of Indebtedness to a Person other Loan Documents without any further action required on the part of the than to Administrative Agent, any Lender or any other Person and for the benefit of the Guarantied Parties (ii) upon as defined in the termination or release Guaranty), then such Material Subsidiary, owner of any Guarantor Unencumbered Pool Property and/or such Subsidiary that directly or indirectly owns any Equity Interest in such owner, as applicable, shall comply with all the terms and conditions of Section 8.14(a) above within thirty (without limiting clause (i30) abovedays of executing such third party Guaranty, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the unless extended by Administrative Agent or any Lender. At the request and in its sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargediscretion.
Appears in 1 contract
Guarantors. Such Obligor will take such action, and will cause each of its Subsidiaries to take such action, from time to time as shall be necessary to ensure that all Subsidiaries of Holdings that are Material Subsidiaries (ain each case, other than Foreign Subsidiaries, CFC Holdcos and Domestic Subsidiaries directly or indirectly wholly-owned by Foreign Subsidiaries) The Guarantors as are “Guarantors” hereunder. Without limiting the generality of the Effective Date are set forth on Schedule 10.14 hereto.foregoing, in the event that any Obligor or any of its Subsidiaries shall form or acquire any new Subsidiary that is a Material Subsidiary or any Subsidiary shall become a Material Subsidiary (in each case, other than any Foreign Subsidiary, CFC Holdco or Domestic Subsidiary directly or indirectly wholly-owned by a Foreign Subsidiary), such Obligor and its Subsidiaries concurrently will:
(b1) Upon any cause such new Subsidiary incurringto become a “Guarantor” of this Note, issuing and a “Grantor” and a “Guarantor” under the Guaranty and Security Agreement, pursuant to a Joinder under the Guaranty and Security Agreement;
(2) take such action or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute take such action (including delivering such shares of stock together with undated transfer powers executed in blank) as shall be necessary to create and perfect valid and enforceable second priority (subject to Permitted Priority Liens) Liens on substantially all of the Guarantee Agreement pursuant to an Addendum thereto personal property of such new Subsidiary as collateral security for the obligations of such new Subsidiary hereunder, other than voting Equity Interests in excess of sixty-five percent (65%) of the form voting Equity Interests of Annex I to the Guarantee Agreement, each Foreign Subsidiary and in the case of a Significant Subsidiary, to deliver documentation, CFC Holdco;
(3) to the extent requested by that the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating parent of such Subsidiary is not a party to the authorization for, execution Guaranty and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be Security Agreement or has not otherwise pledged Equity Interests in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, its Subsidiaries in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation terms of the Freight Separation, each of FedEx Corporation Guaranty and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Security Agreement and this Note, cause the other Loan Documents without any further action required on the part parent of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall Subsidiary to execute and deliver to the Borrower a pledge agreement in favor of Collateral Agent, in respect of all outstanding issued shares of such Subsidiary; and
(4) deliver such proof of corporate action, incumbency of officers, opinions of counsel and other documents as is consistent with those previously delivered by each Obligor or as Collateral Agent, at the Borrower direction of the Required Holders, shall have reasonably request to evidence such release and dischargerequested.
Appears in 1 contract
Guarantors. (a) The Guarantors as of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower Company shall cause such Subsidiary each of its Restricted Subsidiaries (other than Immaterial Subsidiaries) to execute the Guarantee Agreement guarantee pursuant to an Addendum the Multiparty Guaranty or supplement or counterpart thereto in the form of Annex I to the Guarantee Agreement(or, and in the case of a Significant Foreign Subsidiary, any other guaranty agreement requested by the Required Holders) the obligations of the Company evidenced by the Notes and under the other Transaction Documents. In furtherance of the above, after the formation or acquisition of any Restricted Subsidiary or the occurrence of a Subsidiary Redesignation, the Company shall promptly (and in any event upon the earlier of (x) such time as such Restricted Subsidiary becomes a guarantor, co-borrower or other obligor under the Credit Agreement and (y) within 45 days after such formation or acquisition or such Subsidiary Redesignation): (i) provide written notice to the holders of Notes upon any Person becoming a Subsidiary, setting forth information in reasonable detail describing all of the assets of such Person; (ii) cause such Person (other than any Immaterial Subsidiary) to execute a supplement or counterpart to the Multiparty Guaranty and such other Collateral Documents as are necessary for the Company and its Subsidiaries to comply with Section 9.8; (iii) cause the Applicable Pledge Percentage of the issued and outstanding equity interests of such Person and each other Pledge Subsidiary to be delivered to the Collateral Agent (together with undated stock powers signed in blank, if applicable) and pledged to the Collateral Agent pursuant to an appropriate pledge agreement(s) in substantially the form of the Pledge and Security Agreement (or joinder or other supplement thereto) and otherwise in form reasonably acceptable to the Required Holders; and (iv) deliver documentationsuch other documentation as the Required Holders may reasonably request in connection with the foregoing, including, without limitation, certified resolutions and other authority documents of such Person and, to the extent requested by the Administrative AgentRequired Holders, similar favorable opinions of counsel to that described such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above), all in Section 5.01(b) form, content and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance scope reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with Required Holders. Notwithstanding the Lenders that each Specified Guarantor isforegoing, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any no Foreign Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall to execute and deliver the Multiparty Guaranty (or supplement thereto) or such other guaranty agreement if such execution and delivery would cause a Deemed Dividend Problem or a Financial Assistance Problem with respect to such Foreign Subsidiary and, in lieu thereof, the Borrower such documents as Company and the Borrower relevant Restricted Subsidiaries shall reasonably request provide the pledge agreements required under this Section 9.7 or Section 9.8. Notwithstanding the foregoing, the Company will be required to evidence such release and dischargecomply with this Section 9.7 with respect to any Immaterial Subsidiary if it ceases to be an Immaterial Subsidiary under the terms of the definition thereof.
Appears in 1 contract
Sources: Senior Secured Note Purchase Agreement (Encore Capital Group Inc)
Guarantors. (a) The Guarantors as of the Effective Date date hereof are set forth on Schedule 10.14 9.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any public debt securities issued or guaranteed by the Borrower or any other Material IndebtednessIndebtedness of the Borrower, within thirty 30 (30thirty) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(bSections 4.01(c) and (cd) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c9.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c9.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all public debt securities issued or any other Material Indebtednessguaranteed by the Borrower, such Guarantor shall be deemed to be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and discharge. For the avoidance of doubt, it is agreed and understood that any release of any Specified Guarantor from its obligations under the Guarantee Agreement shall be subject to Section 9.01.
Appears in 1 contract
Sources: Credit Agreement (Fedex Corp)
Guarantors. The obligations of (a) The Guarantors as of the Effective Date are set forth on Schedule 10.14 hereto.
Borrower under the Facilities, (b) Upon any Subsidiary incurring, issuing or guaranteeing Loan Party under any debt securities hedging agreements entered into between such Loan Party and any counterparty that is a Lender (as defined below) (or any other Material Indebtednessaffiliate thereof), within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating any Loan Party under any treasury management arrangements between such Loan Party and a Lender (or any affiliate thereof) (such obligations, collectively, the “Obligations”) will be unconditionally guaranteed, on a joint and several basis, by the Parent (as reorganized through the Plan and Confirmation Order), each other entity formed or otherwise continuing through the Plan as a successor to the authorization forDebtors (other than, execution with respect to obligations under clause (a), the Borrower) and delivery ofeach other wholly-owned direct or indirect subsidiary of the Borrower (as reorganized through the Plan and Confirmation Order) (collectively with the Parent, the “Guarantors” and, collectively with the Borrower, the “Loan Parties”; and validity such guarantee being referred to as the “Guarantee”). All Guarantees shall be guarantees of such Significant Subsidiarypayment and not of collection. Notwithstanding the foregoing, Guarantors shall not include, except in the Borrower’s obligations sole discretion, (a) any non-U.S. subsidiary, (b) any direct or indirect subsidiary of (I) a non-U.S. subsidiary or (II) a CFC Holding Company (as defined below), (c) any direct or indirect U.S. organized subsidiary of the Parent that owns no material assets other than (x) equity interests (including, for this purpose, any debt or other instrument treated as equity for U.S. federal income tax purposes) in, or debt issued by, one or more (A) non-U.S. subsidiaries, each of which is a Guarantor“controlled foreign corporation” within the meaning of Section 957 of the Internal Revenue Code (a “CFC”) and/or (B) other CFC Holding Companies and (y) cash, such documentation cash equivalents and incidental assets related thereto held on a temporary basis (a “CFC Holding Company”) and (d) any other U.S. subsidiary of the Parent with respect to which a guarantee could result in an adverse tax or regulatory consequence to the Parent or any of its subsidiaries as determined in good faith by the Borrower. The Plan Support Agreement: The Debtors, the Consenting Lenders and the Consenting Senior Noteholders (each as defined therein) shall enter into a plan support agreement to which this term sheet is attached as an exhibit (including all exhibits thereto, the “Agreement”), which agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
Required Consenting Stakeholders (cas defined below) The Borrower covenants and agrees consistent in all respects with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c)terms provided for herein.
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and discharge.
Appears in 1 contract
Sources: Plan Support Agreement (Vanguard Natural Resources, Inc.)
Guarantors. The Company shall cause each of its Subsidiaries (a) The Guarantors as other than the Excluded Subsidiaries, Immaterial Subsidiaries and each member of the Effective Date are set forth on Schedule 10.14 hereto.
(bPropel Group)) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement guarantee pursuant to an Addendum the Multiparty Guaranty or supplement or counterpart thereto in the form of Annex I to the Guarantee Agreement(or, and in the case of a Significant Foreign Subsidiary, any other guaranty agreement requested by the Required Holders) the obligations of the Company evidenced by the Notes and under the other Transaction Documents. In furtherance of the above, after the formation or acquisition of any Subsidiary the Company shall promptly (and in any event upon the earlier of (x) such time as such Subsidiary becomes a guarantor, co-borrower or other obligor under the Credit Agreement and (y) within 45 days after such formation or acquisition): (i) provide written notice to the holders of Notes upon any Person becoming a Subsidiary, setting forth information in reasonable detail describing all of the assets of such Person; (ii) cause such Person (other than any Excluded Subsidiary, Immaterial Subsidiary and member of the Propel Group) to execute a supplement or counterpart to the Multiparty Guaranty and such other Collateral Documents as are necessary for the Company and its Subsidiaries to comply with Section 9.8; (iii) cause the Applicable Pledge Percentage of the issued and outstanding equity interests of such Person and each other Pledge Subsidiary to be delivered to the Collateral Agent (together with undated stock powers signed in blank, if applicable) and pledged to the Collateral Agent pursuant to an appropriate pledge agreement(s) in substantially the form of the Pledge and Security Agreement (or joinder or other supplement thereto) and otherwise in form reasonably acceptable to the Required Holders; and (iv) deliver documentationsuch other documentation as the Required Holders may reasonably request in connection with the foregoing, including, without limitation, certified resolutions and other authority documents of such Person and, to the extent requested by the Administrative AgentRequired Holders, similar favorable opinions of counsel to that described such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above), all in Section 5.01(b) form, content and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance scope reasonably satisfactory to the Administrative Agent.
Required Holders. Notwithstanding the foregoing, no Foreign Subsidiary shall be required to execute and deliver the Multiparty Guaranty (cor supplement thereto) The Borrower covenants or such other guaranty agreement if such execution and agrees delivery would cause a Deemed Dividend Problem or a Financial Assistance Problem with respect to such Foreign Subsidiary and, in lieu thereof, the Lenders that each Specified Guarantor is, Company and the relevant Subsidiaries shall remain, an entity organized provide the pledge agreements required under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c9.7 or Section 9.8. Notwithstanding the foregoing, the Company will be required to comply with this Section 9.7 (a) shall not prohibit with respect to any member of the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with Propel Group to the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to extent that the provisions of this Section 10.14(c)the Propel Indebtedness no longer prohibits the guaranty of the obligations evidenced by the Notes or the granting of security with respect thereto, and (b) with respect to any Immaterial Subsidiary if it ceases to be an Immaterial Subsidiary under the terms of the definition thereof.”
(dg) Notwithstanding anything Section 9.8 is amended to delete the reference to “its counsel” in the last sentence thereof and to replace such reference with “counsel to the contrary contained herein or in any other Loan Document, (i) upon the Consummation holders of the Freight SeparationNotes.”
(h) Section 9.9 is amended and restated, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and discharge.follows:
Appears in 1 contract
Sources: Senior Secured Note Purchase Agreement (Encore Capital Group Inc)
Guarantors. (a) The Guarantors as Within fifteen (15) Business Days after the date of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterPerson becoming a Required Guarantor, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I deliver to the Guarantee Agreement, and in Administrative Agent each of the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be following in form and substance reasonably satisfactory to the Administrative Agent: (A)(i) with respect to any owner of the Equity Interests of the Borrower, a joinder or amendment to the Guaranty to unconditionally guaranty the Guaranteed Obligations hereunder in their entirety, and (ii) with respect to any such Subsidiary an Accession Agreement executed by such Required Guarantor, (B) the items that would have been delivered under subsections (vi) through (xiii) of Section 6.1.(a) and under Section 6.1.(f) if such Person had been a Required Guarantor on the Agreement Date and (C) prior to the Collateral Release Date, an executed Pledge Joinder Agreement; provided, however, promptly (and in any event within fifteen (15) Business Days) upon any Excluded Subsidiary ceasing to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement pursuant to this Section, as the case may be, such Subsidiary shall comply with the applicable provisions of this Section.
(b) The Borrower may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall release any Guarantor that is no longer a Required Guarantor, so long as (i) the Borrower shall certify in writing that no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 10.1. (as evidenced by a Compliance Certificate showing calculation in reasonable detail of such covenants on a pro forma basis after giving effect to such release); (ii) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date); (iii) the Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be reasonably acceptable to the Administrative Agent) prior to the requested date of release; and (iv) at least 75 Properties shall be Eligible Properties included in the calculation of Unencumbered Asset Value after giving effect to such release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
(c) The Borrower covenants and agrees with the Lenders may request in writing that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the release, and upon receipt of such request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver release, a Subsidiary Guarantor from the Pledge Agreement so long as: (i) such Subsidiary Guarantor owns no Eligible Property, nor any direct Equity Interest in any Subsidiary that owns an Eligible Property; (ii) such Subsidiary Guarantor is not otherwise required to be a party to the Borrower Pledge Agreement under the immediately preceding subsection (a), (iii) no Default or Event of Default shall then be in existence or would occur as a result of such documents release, including, without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 10.1. (as evidenced by a Compliance Certificate showing calculation in reasonable detail of such covenants on a pro forma basis after giving effect to such release); (iv) the representations and warranties made or deemed made by the Parent, the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall reasonably request be true and correct in all material respects (except that, to evidence the extent any representation or warranty is qualified by materiality or Material Adverse Effect or similar language, such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and dischargeeffect as if made on and as of such date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except that, to the extent any such representation or warranty is qualified by materiality or Material Adverse Effect or similar language, such representation or warranty shall have been true and correct in all respects) on and as of such earlier date); (v) the Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release; and (vi) at least 75 Properties shall be Eligible Properties included in the calculation of Unencumbered Asset Value after giving effect to such release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
Appears in 1 contract
Guarantors. (a) The Guarantors as Within ten (10) Business Days, unless extended by Administrative Agent in its sole discretion, of any Person becoming a Material Subsidiary (other than an Excluded Subsidiary) after the Agreement Date or in connection with the addition of a Property to the Unencumbered Pool that is owned by a Subsidiary not already a Guarantor (or Borrower), the Borrower shall deliver to the Administrative Agent (i) either satisfactory evidence that such Material Subsidiary is not required to execute a Guaranty in order for Borrower to comply with Section 10.1(h) or (ii) each of the following in form and substance satisfactory to the Administrative Agent: (A) an Accession Agreement executed by such Subsidiary and (B) the items that would have been delivered under subsections (iv) through (viii), and (xiv) through (xvi), of Section 6.1(a) if such Subsidiary had been a Material Subsidiary on the Agreement Date; provided, however, promptly (and in any event within ten (10) Business Days, unless extended by Administrative Agent in its sole discretion) upon any Excluded Subsidiary ceasing to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date are set forth on Schedule 10.14 heretoor delivering an Accession Agreement pursuant to this Section, as the case may be, such Subsidiary shall comply with the provisions of this Section. For the purpose of clarity, each Unencumbered Pool Property must be owned by a Guarantor or the Borrower.
(b) Upon The Borrower may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall release, a Guarantor from the Guaranty so long as: (i) such Guarantor does not own (or will not own as of such release) any Unencumbered Pool Property, nor any direct or indirect equity interest in any Subsidiary incurringthat owns an Unencumbered Pool Property; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, issuing including without limitation, a Default or guaranteeing Event of Default resulting from a violation of any debt securities of the covenants contained in Section 10.1; (iv) the representations and warranties made or any other Material Indebtedness, within thirty (30) days thereafter, deemed made by the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto and each other Loan Party in the form Loan Documents to which any of Annex I to them is a party, shall be true and correct on and as of the Guarantee Agreement, date of such release with the same force and in the case effect as if made on and as of a Significant Subsidiary, to deliver documentation, such date except to the extent requested by 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 except for changes in factual circumstances expressly permitted under the Loan Documents; and (v) the Administrative Agent, similar to that described in Section 5.01(bAgent shall have received such written request at least ten (10) and Business Days (c) relating to the authorization for, execution and delivery of, and validity of or such Significant Subsidiary’s obligations shorter period as a Guarantor, such documentation to may be in form and substance reasonably satisfactory acceptable to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject prior to the provisions requested date of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of release. Delivery by the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of to the Administrative Agent or of any Lender. At such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and sole expense as of the Borrower following any date of the effectiveness of such release request) are true and discharge, the Administrative Agent shall execute and deliver correct with respect to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargerequest.
Appears in 1 contract
Guarantors. (a) The Guarantors Company will cause any Subsidiary that guarantees or otherwise becomes liable at any time, whether as a borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under any Material Credit Facility, to deliver to each of the Effective Date are set forth on Schedule 10.14 heretoholders of the Notes (concurrently with the incurrence of any such obligation) the following items:
(i) a duly executed Joinder to the Subsidiary Guaranty in the form attached as Exhibit 9.9;
(ii) a certificate signed by an authorized Responsible Officer of such Subsidiary making representations and warranties to the effect of those contained in Section 5 which the Guarantors provided at each Closing with respect to such Subsidiary and the Subsidiary Guaranty, as applicable; and
(iii) an opinion of counsel (who may be in-house counsel for the Company) addressed to each of the holders of the Notes satisfactory to the Required Holders, to the effect that the Subsidiary Guaranty by such Person has been duly authorized, executed and delivered and that the Subsidiary Guaranty constitutes the legal, valid and binding contract and agreement of such Person enforceable in accordance with its terms, except as an enforcement of such terms may be limited by bankruptcy, insolvency, fraudulent conveyance and similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles.
(b) Upon The holders of the Notes agree to discharge and release any Guarantor from the Subsidiary incurringGuaranty upon the written request of the Company, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to provided that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a such Guarantor shall be automatically and unconditionally has been released and discharged from all its obligations (or will be released and discharged concurrently with the release of such Guarantor under the Guarantee Agreement Subsidiary Guaranty) as a borrower, co‑borrower and guarantor under and in respect of all Material Credit Facilities and the other Loan Documents without any further action required on Company so certifies to the part holders of the Administrative AgentNotes in a certificate of a Responsible Officer, any Lender or any other Person and (ii) upon at the termination or release time of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent Company shall execute and deliver a certificate of a Responsible Officer to the Borrower holders of the Notes stating that no Default or Event of Default exists, and (iii) if any fee or other form of consideration (including but not limited to the granting of a security interest in collateral) is given to any holder of Indebtedness of the Company for the purpose of such documents as release, holders of the Borrower Notes shall reasonably request to evidence such release and dischargereceive equivalent consideration.
Appears in 1 contract
Sources: Note Purchase Agreement (Vectren Utility Holdings Inc)
Guarantors. (a) The Guarantors Company will cause any Person that guarantees or otherwise becomes liable at any time, whether as a borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under any Material Credit Facility to concurrently therewith:
(i) enter into an agreement in form and substance satisfactory to the Required Holders providing for the guaranty by such Person, on a joint and several basis with all other such Persons, of (x) the prompt payment in full when due of all amounts payable by the Company pursuant to the Series R Bonds (whether for principal, interest, Make-Whole Amount or otherwise) and this Agreement, including all indemnities, fees and expenses payable by the Company thereunder and (y) the prompt, full and faithful performance, observance and discharge by the Company of each and every covenant, agreement, undertaking and provision required pursuant to the Series R Bonds or this Agreement to be performed, observed or discharged by it (a “Guaranty Agreement”); and
(ii) deliver the following to each holder of a Series R Bond:
(A) an executed counterpart of such Guaranty;
(B) a certificate signed by an authorized responsible officer of such Person containing representations and warranties on behalf of such Person to the same effect, mutatis mutandis, as those contained in Sections 5.1, 5.2, 5.6, and 5.7 of this Agreement (but with respect to such Person and such Guaranty rather than the Company);
(C) all documents as may be reasonably requested by the Required Holders to evidence the due organization, continuing existence and, where applicable, good standing of such Person and the due authorization by all requisite action on the part of such Person of the Effective Date are execution and delivery of such Guaranty and the performance by such Person of its obligations thereunder; and
(D) an opinion of counsel reasonably satisfactory to the Required Holders covering such matters relating to such Person and such Guaranty as the Required Holders may reasonably request. Unitil Energy Systems, Inc. Bond Purchase Agreement In addition to the foregoing, if the Bank Credit Agreement shall contain (or be amended to contain) covenants, reporting obligations or events of default related to such Bank Guarantor, then the Company shall deliver an amendment to this Agreement to add similar covenants, reporting obligations and events of default related to such Bank Guarantor for the benefit of the holders of the Series R Bonds, and until such time as such amendment is delivered, this Agreement shall be deemed, without any action on the part of the parties hereto, to be amended to include such additional covenants, reporting obligations and events of default as if set forth herein in full. If the Bank Credit Agreement shall cease to contain such covenants, reporting obligations or events of default related to such Bank Guarantor, then the Company and the holders of the Series R Bonds shall deliver an amendment to this Agreement to remove such similar covenants, reporting obligations and events of default related to such Bank Guarantor, and until such time as such amendment is delivered, this Agreement shall be deemed, without any action on Schedule 10.14 the part of the parties hereto, to be amended to exclude such covenants, reporting obligations and events of default as if set forth herein in full.
(b) Upon At the election of the Company and by written notice to each holder of Series R Bonds, any Subsidiary incurring, issuing Guarantor that has provided a Guaranty under subparagraph (a) of this Section 9.2.8 may be discharged from all of its obligations and liabilities under its Guaranty and shall be automatically released from its obligations thereunder without the need for the execution or guaranteeing any debt securities or delivery of any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested document by the Administrative Agentholders, similar to provided that described (i) if such Guarantor is a guarantor or is otherwise liable for or in Section 5.01(brespect of any Material Credit Facility, then such Guarantor has been released and discharged (or will be released and discharged concurrently with the release of such Guarantor under its Guaranty) and under such Material Credit Facility, (cii) relating to at the authorization for, execution and delivery time of, and validity of such Significant Subsidiary’s obligations as a Guarantorafter giving effect to, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, no Default or Event of Default shall be existing, (iii) no amount is then due and payable under such Guaranty, (iv) if in connection with such Guarantor being released and discharged under any Material Credit Facility, any fee or other form of consideration is given to any holder of Indebtedness under such Material Credit Facility for such release, the Administrative Agent holders of the Series R Bonds shall execute receive equivalent consideration substantially concurrently therewith, and deliver (v) each holder shall have received a certificate of a Responsible Officer certifying as to the Borrower matters set forth in clauses (i) through (iv). In the event of any such documents as the Borrower release, for purposes of Section 10.1, all Indebtedness of such Subsidiary shall reasonably request be deemed to evidence have been incurred concurrently with such release and dischargerelease.
Appears in 1 contract
Guarantors. (a) The Guarantors as Within 5 Business days following the date on which any of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon following conditions applies to any Subsidiary incurringor Unconsolidated Affiliate that is not already a Guarantor, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate to execute and deliver an Accession Agreement and the Guarantee items that would have been delivered under subsections (iv) through (viii) and (xiii) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement pursuant to an Addendum thereto Date:
(i) such Person Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of (1) the form Parent; (2) the Borrower; (3) any other Subsidiary of Annex I to the Guarantee AgreementParent, and the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset Value.
(b) The Borrower may request in writing that the Administrative Agent release a Significant SubsidiaryGuarantor from the Guaranty, to deliver documentation, to the extent requested and upon receipt of such written request by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying that: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all its obligations material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Guarantee Loan Documents.
(r) The Credit Agreement without any is further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargeamended by restating Section 9.1.
Appears in 1 contract
Guarantors. (a) The Guarantors as Within ten (10) Business Days following the date on which any of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon following conditions first applies to any Subsidiary incurring, issuing or guaranteeing any debt securities or any of a Borrower (other Material Indebtedness, within thirty (30than another Borrower) days thereafterthat is not already a Guarantor, the Borrower Representative shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I deliver to the Guarantee Agreement, and in Agent each of the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be following in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, : (i) upon a Guaranty, substantially in the Consummation form of Exhibit H, or, if such Guaranty has been previously executed, an Accession Agreement (or if at any such time all Guarantors have been released from the Guaranty and as a result of such releases the Guaranty has terminated, a Guaranty substantially in the form of the Freight SeparationExhibit H) executed by such Subsidiary, and (ii) the items that would have been delivered under Section 5.1.(a)(iv) through (a)(viii) and Section 5.1.(a)(xii) had any such Subsidiary been a Guarantor on the Agreement Date, with each reference to “Agreement Date” in such subsections deemed to be a reference to the date the Accession Agreement referenced in the immediately preceding clause (i) is delivered to the Agent:
(A) such Subsidiary Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of FedEx Corporation and its subsidiaries (but notthe Trust, for the avoidance of doubt, a Borrower or any Subsidiary of the Borrower following Consummation of the Freight SeparationTrust or a Borrower; or
(B) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person (i) such Subsidiary owns an Eligible Unencumbered Property and (ii) such Subsidiary (or any other Subsidiary that directly or indirectly owns an Equity Interest in such Subsidiary) has incurred, acquired or suffered to exist any Recourse Indebtedness.
(b) The Borrower Representative may request in writing that the Agent release, and upon receipt of such request the termination or release of any Agent shall release, a Guarantor (without limiting clause from the Guaranty so long as: (i) abovesuch Guarantor is not required to be a party to the Guaranty under the immediately preceding subsection (a) (including by reason of a transfer of all of the Equity Interests of a Guarantor permitted by Section 9.7. that results in such Guarantor no longer being a Subsidiary); (ii) no Default or Event of Default shall then be in existence or would occur as a result of such release, other than any Specified Guarantor) including without limitation, a Default or Event of Default resulting from its incurrence, issuance and guarantee a violation of any of the covenants contained in Section 9.1.; (iii) the representations and all debt securities warranties made or deemed made by each Borrower and each other Loan Party in the Loan Documents to which any other Material Indebtednessof them is a party, such Guarantor shall be automatically true and unconditionally released correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and discharged from correct in all its obligations respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances not prohibited under the Guarantee Agreement without Loan Documents; and (iv) the Agent shall have received such written request at least 5 Business Days (or such shorter period as may be acceptable to the Agent) prior to the requested date of release. Delivery by the Borrower Representative to the Agent of any further action required on such request shall constitute a representation by each Borrower that the part matters set forth in the preceding sentence (both as of the Administrative Agent or any Lender. At date of the giving of such request and sole expense as of the Borrower following any date of the effectiveness of such release request) are true and discharge, the Administrative Agent shall execute and deliver correct with respect to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargerequest.
Appears in 1 contract
Sources: Credit Agreement (Lepercq Corporate Income Fund L P)
Guarantors. (a) The Guarantors as Each Guarantor hereby unconditionally and irrevocably guarantees severally, but not jointly, to the Company the due and punctual performance of each of the Effective Date obligations and the undertakings of TAGTCR under this Agreement when and to the extent the same are set forth on Schedule 10.14 heretorequired to be performed and subject to all of the terms and conditions hereof; provided, however, that neither TA nor GTCR shall have liability for more than 48.235% of any liability, and NMS shall not have liability for more than 3.530% of any liability, arising from a breach by TAGTCR under this Agreement, and provided, further that no Guarantor shall have any liability whatsoever under this guaranty after the Closing, whether based upon events occurring prior to or after the Closing. If TAGTCR shall fail to perform fully and punctually any obligation or undertaking of TAGTCR under this Agreement when and to the extent the same is required to be performed, subject to the first sentence of this Section 8.12(a) each Guarantor will upon written demand from the Company forthwith perform or cause to be performed such obligation or undertaking, as the case may be. The obligations of each Guarantor under this guaranty shall constitute an absolute and unconditional present and continuing guarantee of performance to the extent provided herein, and shall not be contingent upon any attempt by the Company to enforce performance by TAGTCR.
(b) Upon Subject to 8.12(a), the obligations of each Guarantor under this guaranty are absolute and unconditional, are not subject to any Subsidiary incurringcounterclaim, issuing set off, deduction, abatement or guaranteeing defense based upon any debt securities claim a Guarantor may have against the Company (except for any defense TAGTCR may have against the Company under the terms of this Agreement), and shall remain in full force and effect without regard to (i) any agreement or modification to any of the terms of this Agreement or any other Material Indebtednessagreement which may hereafter be made relating thereto; (ii) any exercise, within thirty non-exercise, or waiver by the Company of any right, power, privilege or remedy under or in respect of this Agreement; (30iii) days thereafterany insolvency, bankruptcy, dissolution, liquidation, reorganization or the Borrower shall cause such Subsidiary like of TAGTCR at or prior to execute the Guarantee Agreement pursuant to an Addendum thereto Closing; (iv) absence of any notice to, or knowledge by, Guarantor of the existence or occurrence of any of the matters or events set forth in the form foregoing causes (i) through (iii); (v) any transfer of Annex I shares of capital stock of TAGTCR, or any assignment by TAGTCR of its rights and obligations under this Agreement, to a wholly-owned subsidiary of TAGTCR or a Guarantor; or (vi) any other circumstance, whether similar or dissimilar to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agentforegoing.
(c) The Borrower covenants Each Guarantor unconditionally waives (i) any and agrees with all notice of default, non-performance or non-payment by TAGTCR under this Agreement, (ii) all notices which may be required by statute, rule of law or otherwise to preserve intact any rights of the Lenders that each Specified Guarantor isCompany against a Guarantor, including, without limitation, any demand, presentment or protest, or proof of notice of non-payment under this Agreement, and shall remain(iii) any right to the enforcement, an entity organized under assertion or exercise by the laws Company of any jurisdiction within the United States. For the avoidance of doubtright, power, privilege or remedy conferred in this Section 10.14(c) shall not prohibit the Freight Separation Agreement or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c)otherwise.
(d) Notwithstanding anything any provision of this Agreement to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubtcontrary, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor liability arising under this contract or this guaranty shall be automatically limited to $41.0 million, in the case of TA and unconditionally released GTCR, and discharged from all its obligations under $3.0 million, in the Guarantee Agreement and the other Loan Documents without any further action required on the part case of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargeNMS.
Appears in 1 contract
Guarantors. (a) The Guarantors as A Guarantor's right of contribution pursuant to the preceding sentences shall arise at the time of each computation, subject to adjustment to the time of any subsequent computation; provided, that no Guarantor may take any action to enforce such right until the Guaranteed Obligations have been indefeasibly paid in full in cash and the Total Commitment and all Letters of Credit and Interest Rate Protection Agreements and Other Hedging Agreements have been terminated, it being expressly recognized and agreed by all parties hereto that any Guarantor's right of contribution arising pursuant to this Section 26 against any other Guarantor shall be expressly junior and subordinate to such other Guarantor's indebtedness, obligations and liabilities in respect of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon Guaranteed Obligations and any Subsidiary incurring, issuing or guaranteeing any debt securities other obligations owing under this Guaranty or any other Material IndebtednessCredit Document to which such Guarantor is a party. As used in this Section 26: (i) each Guarantor's "Contribution Percentage" shall mean the percentage obtained by dividing (x) the Adjusted Net Worth (as defined below) of such Guarantor by (y) the aggregate Adjusted Net Worth of all Guarantors; (ii) the "Adjusted Net Worth" of each Guarantor shall mean the greater of (x) the Net Worth (as defined below) of such Guarantor and (y) zero; and (iii) the "Net Worth" of each Guarantor shall mean the amount by which the fair salable value of such Guarantor's assets on the date of any Relevant Payment exceeds its existing debts and other liabilities (including contingent liabilities, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary but without giving effect to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentationany Guaranteed Obligations arising under this Guaranty and, to the maximum extent requested permitted by the Administrative Agentapplicable law, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity any liabilities of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be Guarantor in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws respect of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender Permitted Subordinated Indebtedness or any other Person indebtedness that is subordinated to the Guaranteed Obligations or any obligations arising under this Guaranty) on such date. All parties hereto recognize and (ii) upon agree that, except for any right of contribution arising pursuant to this Section 26, each Guarantor that makes any payment in respect of the termination Guaranteed Obligations shall have no right of contribution or release subrogation against any other Guarantor in respect of such payment. Each of the Guarantors recognizes and acknowledges that the rights to contribution arising hereunder shall constitute an asset in favor of the party entitled to such contribution. In this connection, each Guarantor has the right to waive its contribution right against any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, to the extent that after giving effect to such waiver such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under would remain solvent, in the Guarantee Agreement without any further action required on the part reasonable determination of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargeRequired Lenders.
Appears in 1 contract
Sources: Guaranty (Silgan Holdings Inc)
Guarantors. (a) The Guarantors as Company shall ensure that at all times:
(i) all Material Companies which are members of the Effective Date Restricted Group (other than an Excluded Subsidiary), Holding Companies of Material Companies (other than the Holding Company of the Company) and any member of the Restricted Group that is or becomes a guarantor in respect of the Notes, are Guarantors (in the case of any member of the Restricted Group that is or becomes a guarantor in respect of the Notes, simultaneously to becoming guarantors in respect of the Notes); and
(ii) subject to paragraph (d) below, the aggregate of the earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Consolidated EBITDA) of the Guarantors, the aggregate gross assets and the aggregate turnover of the Guarantors (in each case calculated on an unconsolidated basis and excluding all intra-Restricted Group items) represents not less than 90 per cent. of Consolidated EBITDA, consolidated gross assets and consolidated turnover of all members of the Restricted Group, in each case calculated by reference to the Original Financial Statements of the Company prior to the Closing Date; and (ii) thereafter, with each set forth on Schedule 10.14 heretoof audited annual financial statements delivered under Clause 27.1 (Financial Statements).
(b) Upon The Company shall not have any Subsidiary incurring, issuing or guaranteeing obligation to procure that any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, member of the Borrower shall cause such Subsidiary Restricted Group becomes an Additional Guarantor unless the Annual Financial Statements demonstrate that the same would be necessary in order to execute comply with the Guarantee Agreement pursuant to an Addendum thereto in the form requirements of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agentthis Clause 29.14.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) Company shall not prohibit be in breach of sub-paragraph (a)(ii) of this Clause 29.14 if the Freight Separation only reason the 90 per cent. threshold set out therein is not met is that the Excluded Subsidiaries (taken together) have earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Consolidated EBITDA), gross assets and turnover representing more than 10 per cent of Consolidated EBITDA or any merger gross assets or consolidation turnover (excluding intra-Restricted Group items) representing more than 10 per cent. of a Specified Guarantor; provided, thatthe gross assets or turnover of the Restricted Group, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become each case calculated on a Specified Guarantor and be subject to the provisions of this Section 10.14(c)consolidated basis.
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all The Company need only perform its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and paragraph (ii) upon the termination or release of any Guarantor (without limiting clause (ia) above, to the extent it is not unlawful for the relevant person to become a Guarantor and that person becoming a Guarantor would not result in personal liability for that person’s directors or other management. Each Obligor must use, and must procure that the relevant person uses, all reasonable endeavours lawfully available to avoid any such unlawfulness or personal liability. This includes agreeing to a limit on the amount guaranteed. The Agent may (but shall not be obliged to) agree to such a limit if, in its opinion, to do so would avoid the relevant unlawfulness or personal liability.
(e) Any member of the Restricted Group (other than an Excluded Subsidiary) that becomes a Material Company and any Specified GuarantorMaterial Company (other than an Excluded Subsidiary) from its incurrence, issuance acquired in accordance with this Agreement after the Closing Date shall become a Guarantor and guarantee grant Security as the Agent may require and shall accede to the Intercreditor Agreement within 20 Business Days of delivery of any and all debt securities Compliance Certificate accompanying the audited annual financial statements delivered under Clause 27.1 (Financial Statements) or any other Material Indebtednesswithin 20 Business Days of its acquisition, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower case may be.
(f) Nothing in this Agreement shall reasonably request require any Excluded Subsidiary to evidence such release and dischargeaccede as a Guarantor for so long as it is an Excluded Subsidiary.
Appears in 1 contract
Sources: Revolving Facilities Agreement (Manchester United Ltd.)
Guarantors. (a) The Guarantors If during any fiscal quarter, by way of Division or otherwise, (i) a Subsidiary that should be a Parent Guarantor is organized or acquired, or (ii) subject to clause (y) of the proviso to the definition of “Guarantor”, a Subsidiary that is not already a Guarantor and is not an Excluded Subsidiary becomes a borrower or a guarantor of, or otherwise becomes obligated to make any payment in respect of, any Unsecured Indebtedness, then not later than the date of the delivery of the financial statements required to be delivered pursuant to Sections 6.1(a) or (b), as applicable, with respect to such fiscal quarter (or, to the extent that as of such initial required delivery date, any such Subsidiary or its assets are the Effective Date are set forth on Schedule 10.14 hereto.
subject of Joint Venture Negotiations, not later than the date of the delivery of the financial statements required to be delivered pursuant to Sections 6.1(a) or (b), as applicable, with respect to the immediately succeeding fiscal quarter) Upon any Subsidiary incurring(or, issuing or guaranteeing any debt securities or any other Material Indebtednessin each case, within thirty (30) days thereaftersuch later date as the Administrative Agent may agree in its sole discretion), the Borrower shall provide the Administrative Agent with written notice thereof and shall cause each such Subsidiary to execute deliver to the Guarantee Agreement pursuant Administrative Agent a joinder to an Addendum thereto the Guaranty (in the form of Annex I contemplated thereby) pursuant to the Guarantee Agreement, and in the case of a Significant Subsidiary, which such Subsidiary agrees to deliver documentation, to the extent requested be bound by the Administrative Agentterms and provisions thereof, similar such Guaranty joinders to be accompanied by an updated Schedule 5.7 hereto designating such Subsidiary as such and the appropriate corporate, limited liability company, limited partnership or equivalent resolutions and other associated documentation and legal opinions that described in Section 5.01(bwould have been delivered under Sections 4.1(c) and (ce) relating to if such Subsidiary had been a Subsidiary on the authorization forEffective Date, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in each case in form and substance reasonably satisfactory to the Administrative AgentAgent and its counsel, and such other documentation as the Administrative Agent may reasonably request.
(cb) The Borrower covenants and agrees with may request in writing that the Lenders Administrative Agent release a Guarantor, other than any Parent Guarantor, from the Guaranty so long as: (i) such Guarantor either (1) owns no Eligible Property, nor any direct or indirect equity interest in any Subsidiary that each Specified owns an Eligible Property, (2) has ceased to be a Subsidiary of the REIT pursuant to a transaction otherwise not prohibited pursuant to the Loan Documents or has become an Excluded Subsidiary, (3) has ceased to be a borrower or a guarantor of, or otherwise obligated to make any payment in respect of, any Unsecured Indebtedness or (4) is not required to be a Guarantor is, and shall remain, an entity organized under due to clause (y) of the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with proviso to the definition of “Specified Guarantor”; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any Person into of the covenants contained in Section 6.16; (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (v) the Administrative Agent shall have received such written request (which such Specified Guarantor is merged or consolidated, or request shall include a certificate of an Authorized Signatory of the Borrower certifying the matters referred to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to in the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, immediately preceding clauses (i) upon through (iv)) at least 10 Business Days (or such shorter period as may be acceptable to the Consummation Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary date of the Borrower following Consummation giving of such request and as of the Freight Separationdate of the effectiveness of such request) that is a are true and correct with respect to such request. Upon satisfaction of the conditions set forth above, the applicable Guarantor shall be automatically and unconditionally released and discharged from all its obligations under on the Guarantee Agreement and the other Loan Documents requested release date without any further action required on the part of the Administrative Agent, any Lender other notice to or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At .
(c) Upon the request and sole expense release of the Borrower following any such release and dischargePerson pursuant to this Section 6.17, the Administrative Agent shall execute and (to the extent applicable) deliver to the Borrower Loan Parties, upon the Loan Parties’ request and at the Loan Parties’ expense, such documents documentation as is reasonably requested by the Borrower shall (and reasonably request satisfactory to the Administrative Agent) or is necessary to evidence the release of such release and dischargePerson from its obligations under the Loan Documents.
Appears in 1 contract
Guarantors. (a) The Guarantors as Parent shall ensure that at all times:
(i) the aggregate of the Effective Date are set forth earnings before interest, tax, depreciation and amortisation (calculated on Schedule 10.14 heretothe same basis as EBITDA, as defined in Clause 19 (Financial Covenants));
(ii) the aggregate of the gross assets; and
(iii) the aggregate of the turnover, of the Guarantors (in each case calculated on an unconsolidated basis and excluding all intra-group items and investments in Subsidiaries of any member of the Group) represents not less than 90% of the EBITDA (as defined in Clause 19 (Financial Covenants), aggregate gross assets and aggregate turnover, respectively, of the Adjusted Group.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other The Parent shall ensure that each Material Indebtedness, Company which is not a Guarantor becomes a Guarantor in accordance with Clause 30.4 (Additional Guarantors) within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form 10 Business Days of Annex I to the Guarantee Agreement, and in the case of becoming a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative AgentMaterial Company.
(c) The Borrower covenants and agrees with Parent need not perform their obligations under paragraphs (a) and/or (b) above if:
(i) it is unlawful for the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or relevant person to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to that person becoming a Guarantor would result in a personal liability for the directors of that person;
(ii) where the relevant person is a joint venture entity, the relevant person is prohibited from becoming a Guarantor under the provisions of this Section 10.14(cany agreement governing such joint venture; or
(iii) where the relevant person is a joint venture entity, the approval of any other joint venture partner is required for that relevant person to become a Guarantor under the provisions of any agreement governing that joint venture and such approval is refused by the concerned joint venture partner(s).
(d) Notwithstanding anything Each Obligor must use, and procure that the relevant person uses, all reasonable endeavours (including, if necessary, agreeing to a limit on any amount guaranteed but not including the contrary contained herein or in payment of any other Loan Document, material amounts) lawfully available to:
(i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, avoid any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender such unlawfulness or any other Person and personal liability; or
(ii) upon procure the termination removal of or release of any exemption from prohibitions from becoming a Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on applicable agreement(s) or procure the part approval of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargerelevant joint venture partner(s).
Appears in 1 contract
Guarantors. (a) The Guarantors as of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary each of its Restricted Subsidiaries (other than the Excluded Subsidiaries, Immaterial Subsidiaries and each member of the Propel Group) to execute the Guarantee Agreement guarantee pursuant to an Addendum the Guaranty Agreement or supplement thereto in the form of Annex I to the Guarantee Agreement(or, and in the case of a Significant Foreign Subsidiary, any other guaranty agreement requested by the Administrative Agent) the Secured Obligations. In furtherance of the above, after the formation or acquisition of any Restricted Subsidiary or a Subsidiary Redesignation, the Borrower shall promptly (and in any event upon
(i) provide written notice to the Administrative Agent and the Lenders upon any Person becoming a Restricted Subsidiary, setting forth information in reasonable detail describing all of the assets of such Person, (ii) cause such Person (other than any member of the Propel Group and any Immaterial Subsidiary) to execute a supplement to the Guaranty Agreement and such other Collateral Documents as are necessary for the Borrower and its Subsidiaries to comply with Section 5.11, (iii) cause the Applicable Pledge Percentage of the issued and outstanding equity interests of such Person and each other Pledge Subsidiary to be delivered to the Collateral Agent (together with undated stock powers signed in blank, if applicable) and pledged to the Collateral Agent pursuant to an appropriate pledge agreement(s) in substantially the form of the Pledge and Security Agreement (or joinder or other supplement thereto) and otherwise in form reasonably acceptable to the Administrative Agent and (iv) deliver documentationsuch other documentation as the Administrative Agent may reasonably request in connection with the foregoing, including, without limitation, certified resolutions and other authority documents of such Person and, to the extent requested by the Administrative Agent, similar favorable opinions of counsel to that described such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above), all in Section 5.01(b) form, content and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance scope reasonably satisfactory to the Administrative Agent.
. Notwithstanding the foregoing, no Foreign Subsidiary shall be required to execute and deliver the Guaranty Agreement (cor supplement thereto) The or such other guaranty agreement if such execution and delivery would cause a Deemed Dividend Problem or a Financial Assistance Problem with respect to such Foreign Subsidiary and, in lieu thereof, the Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and relevant Restricted Subsidiaries shall remain, an entity organized provide the pledge agreements required under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c5.10 or Section 5.11. Notwithstanding the foregoing, the Borrower will be required to comply with this Section (x) shall not prohibit with respect to any Subsidiaries of Propel Acquisition LLC to the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to extent that the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon Propel Indebtedness no longer prohibits the Consummation guaranty of the Freight Separation, each Obligations or the granting of FedEx Corporation security in respect thereto and its subsidiaries (but not, for y) with respect to any Immaterial Subsidiary if it ceases to be an Immaterial Subsidiary under the avoidance of doubt, any Subsidiary terms of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargedefinition thereof.
Appears in 1 contract
Sources: Amended and Restated Credit Agreement (Encore Capital Group Inc)
Guarantors. (a) The Guarantors as of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material IndebtednessSubject to Section 6.17(b), within thirty 30 days (30or such longer period as the Administrative Agent may agree to in its sole discretion) days thereafterfollowing the formation or acquisition of any direct or indirect Domestic Subsidiary after the Restatement Date, in each case other than Excluded Subsidiaries, the Borrower Credit Parties, as appropriate, shall cause such new Domestic Subsidiary to execute provide to the Guarantee Administrative Agent, for the benefit of the Lender Group, a joinder and supplement to this Agreement pursuant to an Addendum thereto substantially in the form of Annex I Exhibit H (each, a “Joinder Supplement”), pursuant to which such new Domestic Subsidiary shall agree to join as a Guarantor and as a Credit Party under this Agreement, and, at all times other than during a Collateral Fall Away Period, a supplement to the Guarantee AgreementSecurity Agreement and such other security documents, and in the case of a Significant Subsidiarytogether with appropriate Uniform Commercial Code financing statements, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be all in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c(ii) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or provide to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any for the benefit of the Lender Group, all other documentation, including one or any other Person more opinions of counsel satisfactory to the Administrative Agent, which in its reasonable opinion is appropriate with respect to such formation and (ii) upon the termination or release execution and delivery of any Guarantor (without limiting clause (i) the applicable documentation referred to above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its documentation requested by the Lenders to comply with their “know your customer” obligations under the Guarantee Agreement without USA Patriot Act or otherwise imposed pursuant to anti-money laundering rules and regulations. Any document, agreement or instrument executed or issued pursuant to this Section 6.17 shall be a “Loan Document” for purposes of this Agreement.
(b) Immaterial Subsidiaries shall not be required to become Credit Parties pursuant to Section 6.17(a), provided, that if the assets of all such Immaterial Subsidiaries and all Excluded Subsidiaries at any further action required on time of determination exceeds 10% of Consolidated Tangible Assets at the part end of the Administrative Agent or any Lender. At the request and sole expense of most recently ended fiscal quarter, then the Borrower following shall, and shall cause their Subsidiaries to, cause such number of Immaterial Subsidiaries to become Credit Parties in accordance with Section 6.17(a) as is necessary to cause the matters described in the proviso above to cease to be true after giving effect to any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargeImmaterial Subsidiary’s becoming a Credit Party.
Appears in 1 contract
Guarantors. (a) The Guarantors as Within 5 Business days following the date on which any of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon following conditions applies to any Subsidiary incurringor Unconsolidated Affiliate that is not already a Guarantor, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Parent and the Borrower shall cause such Subsidiary or Unconsolidated Affiliate to execute and deliver an Accession Agreement and the Guarantee items that would have been delivered under subsections (iv) through (viii) and (xii) of Section 5.1.(a) if such Subsidiary or Unconsolidated Affiliate had been a Guarantor on the Agreement pursuant to an Addendum thereto Date:
(i) such Person Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of (1) the form Parent; (2) the Borrower; (3) any other Subsidiary of Annex I to the Guarantee AgreementParent, and the Borrower or any other Person (except (x) in the case of an Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Unconsolidated Affiliate and (y) in the case of an Excluded Subsidiary Guaranteeing, or otherwise becoming obligated in respect of, Indebtedness of another Excluded Subsidiary); or
(ii) such Person is an RD Entity, unless the Unencumbered Asset Value attributable to Eligible Properties owned by Non-Guarantors (including such RD Entity) does not exceed 10.0% of the Unencumbered Asset Value.
(b) The Borrower may request in writing that the Administrative Agent release a Significant SubsidiaryGuarantor from the Guaranty, to deliver documentation, to the extent requested and upon receipt of such written request by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released from the Guaranty without the need for the execution or delivery of any other document by any other Person so long as the Borrower provides a written certificate together with such written notice certifying that: (i) such Guarantor is not the Parent; (ii) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a) (other than a Guarantor in respect of the Existing Credit Agreement or 2017 Term Loan Agreement that will be released and discharged thereunder substantially simultaneously with the release of such Guarantor in respect of this Agreement); (iii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; and (iv) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all its obligations material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Guarantee Loan Documents.
(j) The Credit Agreement without any is further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents amended by restating Section 9.1.(b) thereof in its entirety as the Borrower shall reasonably request to evidence such release and discharge.follows:
Appears in 1 contract
Guarantors. Notify the Administrative Agent at the time that any wholly owned Subsidiary of the Borrower becomes a Regulated Entity, and, subject to the proviso following Section 6.12(c), promptly thereafter (and in any event within 60 days after a Guaranty or Guaranty Joinder Agreement, as applicable, has been approved by all necessary action of all applicable Governmental Authorities), cause such Subsidiary to:
(a) The Guarantors as in the case of the Effective Date are set forth on Schedule 10.14 hereto.first Regulated Entity becoming a Guarantor, a Guaranty and thereafter for each additional Regulated Entity, a Guaranty Joinder Agreement duly executed by such Regulated Entity;
(b) Upon any Subsidiary incurring, issuing an opinion of counsel to each Person executing the Guaranty or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Guaranty Joinder Agreement pursuant to an Addendum thereto this Section 6.12 dated as of the date of delivery of such applicable agreements and other Loan Documents provided for in the form of Annex I this Section 6.12 and addressed to the Guarantee AgreementAdministrative Agent and the Lenders, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory acceptable to the Administrative Agent., each of which opinions may be in form and substance, including assumptions and qualifications contained therein, substantially similar to those opinions of counsel delivered pursuant to Section 4.01(a); and
(c) The Borrower covenants and agrees with the Lenders that respect to each Specified Guarantor is, and shall remain, an entity organized under the laws of Person executing any jurisdiction within the United States. For the avoidance of doubt, Guaranty or Guaranty Joinder Agreement pursuant to this Section 10.14(c6.12, current copies of the Organization Documents of each such Person, minutes of duly called and conducted meetings (or duly effected consent actions) shall not prohibit of the Freight Separation board of directors, partners, or any merger appropriate committees thereof (and, if required by such Organization Documents or consolidation applicable law, of a Specified Guarantorthe shareholders, members or partners) of such Person authorizing the actions and the execution and delivery of documents described in this Section 6.12, all certified by the applicable Governmental Authority or appropriate officer as the Administrative Agent may elect; provided, thatnotwithstanding the foregoing provisions of this Section 6.12, there shall be no obligation for any such Subsidiary to become a Guarantor and such Subsidiary shall not become a Guarantor unless (x) such Subsidiary, in accordance with all applicable Laws, may provide (i) such Guaranty or such Guaranty Joinder Agreement, as applicable, and (ii) a guarantee of the obligations of the Borrower pursuant to the Note Purchase Agreement and the Note Purchase Agreement Notes, in accordance with the definition terms of the Note Purchase Agreement (the “Specified GuarantorNote Purchase Guaranty”), any Person into which (y) all necessary action of all applicable Governmental Authorities has occurred and is effective for such Specified Guarantor is merged or consolidated, or Subsidiary to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, provide (i) upon the Consummation of the Freight Separationsuch Guaranty or such Guaranty Joinder Agreement, each of FedEx Corporation and its subsidiaries (but notas applicable, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor Note Purchase Guaranty, and (without limiting clause (iz) above, other than any Specified substantially concurrent with such Subsidiary becoming a Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor Subsidiary shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part also become a guarantor of the Administrative Agent or any Lender. At the request and sole expense obligations of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver pursuant to the Borrower such documents as Note Purchase Agreement and the Borrower shall reasonably request Note Purchase Agreement Notes, pursuant to evidence such release the execution and dischargedelivery of the Note Purchase Guaranty.”
Appears in 1 contract
Guarantors. (a) The Guarantors as Subject to clauses (b) and (c) below, the Borrower at all times shall cause all of the Effective Date Domestic Wholly-Owned Subsidiaries that are set forth on Schedule 10.14 heretoguarantors of either or both of (i) the Senior Notes and (ii) the obligations under the Existing Credit Agreement, to be Guarantors.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within Within thirty (30) days thereafterafter any Domestic Wholly-Owned Subsidiary becomes a guarantor of the Senior Notes or the Existing Credit Agreement, the Borrower shall cause such Domestic Wholly-Owned Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and in the case of deliver a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory Joinder to the Administrative Agent.
(c) The Borrower covenants If at any time (i) a Guarantor (other than the Target) ceases to be a guarantor of the Senior Notes and agrees with ceases to be a guarantor of the Lenders that each Specified Existing Credit Agreement, (ii) a Guarantor isis dissolved, sold, merged, amalgamated or otherwise disposed of in a manner permitted by this Agreement or (iii) the outstanding principal amount of the Senior Notes is equal to or less than $150,000,000, (A) such Guarantor (or in the case of clause (iii), all Guarantors other than the Target) shall be automatically released from its obligations hereunder, without any need for any formal action by the Administrative Agent or Lender, and (B) the Borrower shall remain, an entity organized under the laws provide notice of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject event to the provisions Administrative Agent. Upon the written request of this Section 10.14(c)the Borrower, the Administrative Agent shall execute any documents reasonably requested by the Borrower in order to acknowledge the release of any such Guarantor from its obligations as a Guarantor.
(d) Notwithstanding anything In the event that the Borrower provides a guarantee of the Target Notes, the Borrower shall, within thirty (30) days thereof, cause the Target to be a Guarantor by causing the Target to execute and deliver a Joinder to the contrary contained herein Administrative Agent (to the extent not prohibited by applicable law or in contract; provided that if so prohibited and such prohibition is subsequently removed, such Joinder shall be executed and delivered by the Target at such time). If at any time (x) the Borrower ceases to be a guarantor of the Target Notes and (y) the Target is released from its guarantees (if any) of other Loan DocumentIndebtedness of the Borrower, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor Target shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents hereunder, without any further need for any formal action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of by the Administrative Agent or any Lender, and (ii) the Borrower shall provide notice of any such event to the Administrative Agent. At Upon the written request and sole expense of the Borrower following any such release and dischargeBorrower, the Administrative Agent shall execute and deliver to any documents reasonably requested by the Borrower such documents in order to acknowledge the release of the Target from its obligations as the Borrower shall reasonably request to evidence such release and dischargea Guarantor.
Appears in 1 contract
Guarantors. (a) The Guarantors as Borrower shall cause each of its Domestic Subsidiaries to guarantee pursuant to the Guaranty Agreement or supplement thereto the Secured Obligations. In furtherance of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterabove, the Borrower shall promptly (and in any event within forty-five (45) days thereof)
(i) provide written notice to the Administrative Agent upon any Person becoming a Domestic Subsidiary, setting forth information in reasonable detail describing all of the assets of such Person, (ii) cause such Subsidiary Person to execute a supplement to the Guarantee Guaranty Agreement and such other Collateral Documents as are necessary for the Borrower and its Subsidiaries to comply with Section 6.26, (iii) cause the Applicable Pledge Percentage of the issued and outstanding equity interests of such Person to be delivered to the Collateral Agent (together with undated stock powers signed in blank, if applicable) and pledged to the Collateral Agent pursuant to an Addendum thereto appropriate pledge agreement(s) in substantially the form of Annex I the Pledge and Security Agreement (or joinder or other supplement thereto) and otherwise in form reasonably acceptable to the Guarantee AgreementCollateral Agent and (iv) deliver such other documentation as the Collateral Agent may reasonably request in connection with the foregoing, including, without limitation, certified resolutions and in the case other authority documents of a Significant Subsidiary, to deliver documentationsuch Person and, to the extent requested by the Administrative Collateral Agent, similar favorable opinions of counsel to that described such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above), all in Section 5.01(b) form, content and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance scope reasonably satisfactory to the Administrative Collateral Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, however, that in respect of subclause (iii), no Credit Party shall be required to pledge (w) the equity interests of Roto-Rooter of Canada, Ltd. or VNF, (x) more than 40% of the equity interests of RR Plumbing Services Corporation, (y) more than 49% of the equity interests of Complete Plumbing Services Inc., or (z) more than 80% of the equity interests of Nurotoco of New Jersey, Inc.; provided, further, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject except to the provisions of extent necessary to satisfy any licensing requirement under applicable law with respect to the Borrower's or any Subsidiary's business, the Borrower will not permit, nor will it permit any other Credit Party to, grant a security interest in, pledge or deliver to any non-Credit Party those equity interests that are not pledged or delivered to the Collateral Agent pursuant to this Section 10.14(c)6.25.
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and discharge.
Appears in 1 contract
Sources: Credit Agreement (Chemed Corp)
Guarantors. (a) The Guarantors as of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Parent and each Borrower shall cause such Subsidiary each of its Wholly-Owned Subsidiaries (other than the Exempt Subsidiaries) that either (x) Guarantees any Indebtedness for borrowed money (other than Permitted Indebtedness) of Parent, Holdings or the Company in an aggregate principal amount in excess of $500,000,000 or (y) is a borrower under or an issuer of or is a guarantor of (A) the Bridge Credit Agreement, (B) any Contemplated Debt Securities or the Contemplated Private Placement or (C) the Existing CF Notes to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I become a Guarantor hereunder by (i) executing and delivering to the Guarantee Agreement, and in the case of Administrative Agent a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as Guaranty Agreement or a Guarantor, such Guaranty Joinder Agreement or comparable guaranty documentation to be in form and substance reasonably satisfactory to the Administrative Agent.
Agent within thirty (c30) The Borrower covenants and agrees days (or such longer time period if agreed to by the Administrative Agent in its reasonable discretion) after the requirements in clause (x) or (y) above shall first have been satisfied with respect to such Subsidiary (it being understood that such Guaranty Agreement or a Guaranty Joinder Agreement or comparable guaranty documentation shall be accompanied by documentation with respect thereto substantially consistent with the Lenders that each Specified Guarantor isdocumentation delivered pursuant to Section 4.1(c), (d) and (e) or Section 4.3(e), (f), (g) and (k), as applicable); provided that, notwithstanding anything in any Loan Document to the contrary, such Guaranty Agreement, Guaranty Joinder Agreement or comparable guaranty documentation shall, subject to the Agreed Guarantee Principles, be reasonably satisfactory to the Administrative Agent and shall remain, an entity organized under be limited to the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance extent necessary to comply with the definition of “Specified Guarantor”Agreed Guarantee Principles (including by limiting the maximum amount guaranteed), any Person into which limitations in such Specified Guarantor is merged agreement or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, documentation shall become a Specified Guarantor and in each case be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part reasonable satisfaction of the Administrative Agent. Upon execution and delivery of such Guaranty Agreement, any Lender Guaranty Joinder Agreement or any other comparable guaranty documentation, each such Person shall become a Guarantor hereunder and (ii) upon thereupon shall have all of the termination or release of any Guarantor (without limiting clause (i) aboverights, other than any Specified Guarantor) from its incurrencebenefits, issuance duties and guarantee of any and all debt securities or any other Material Indebtedness, obligations in such Guarantor shall be automatically and unconditionally released and discharged from all its obligations capacity under the Guarantee Agreement without any further action required on the part of Loan Documents. If requested by the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and dischargeAgent, the Administrative Agent shall execute receive an opinion or opinions of counsel (which may be from in-house counsel, provided that such opinion is in respect of New York law) for the Lead Borrower in form and deliver substance reasonably satisfactory to the Borrower Administrative Agent in respect of matters reasonably requested by the Administrative Agent relating to any such documents Guaranty Agreement, Guaranty Joinder Agreement or comparable guaranty documentation delivered pursuant to this Section 5.9, dated as of the Borrower shall reasonably request to evidence date of such release and dischargeGuaranty Agreement, Guaranty Joinder Agreement or comparable guaranty documentation, as applicable.
Appears in 1 contract
Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.)
Guarantors. (a) The Guarantors as Within fifteen (15) Business Days after the date of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafterPerson becoming a Required Guarantor, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I deliver to the Guarantee Agreement, and in Administrative Agent each of the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be following in form and substance reasonably satisfactory to the Administrative Agent: (A)(i) with respect to any owner of the Equity Interests of the Borrower, a joinder or amendment to the Parent Guaranty to unconditionally guaranty the Guaranteed Obligations hereunder in their entirety, and (ii) with respect to any such Subsidiary an Accession Agreement executed by such Required Guarantor, (B) the items that would have been delivered under subsections (vi) through (xiii) of Section 6.1.(a) and under Section 6.1.(f) if such Person had been a Required Guarantor on the Agreement Date and (C) prior to the Collateral Release Date, an executed Pledge Joinder Agreement; provided, however, promptly (and in any event within fifteen (15) Business Days) upon any Excluded Subsidiary ceasing to be subject to the restriction which prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement pursuant to this Section, as the case may be, such Subsidiary shall comply with the applicable provisions of this Section.
(b) The Borrower may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall release any Guarantor that is no longer a Required Guarantor, LEGAL 4867-4266-3982v.3 so long as (i) the Borrower shall certify in writing that no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) (as evidenced by a Compliance Certificate showing calculation in reasonable detail of such covenants on a pro forma basis after giving effect to such release); (ii) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date); (iii) the Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be reasonably acceptable to the Administrative Agent) prior to the requested date of release; and (iv) at least 100 Properties shall be Eligible Properties included in the calculation of Unencumbered Asset Value after giving effect to such release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
(c) The Borrower covenants and agrees with the Lenders may request in writing that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the release, and upon receipt of such request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver release, a Subsidiary Guarantor from the Pledge Agreement so long as: (i) such Subsidiary Guarantor owns no Eligible Property, nor any direct Equity Interest in any Subsidiary that owns an Eligible Property; (ii) such Subsidiary Guarantor is not otherwise required to be a party to the Borrower Pledge Agreement under the immediately preceding subsection (a), (iii) no Default or Event of Default shall then be in existence or would occur as a result of such documents release, including, without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 10.1. (as evidenced by a Compliance Certificate showing calculation in reasonable detail of such covenants on a pro forma basis after giving effect to such release); (iv) the representations and warranties made or deemed made by the Parent, the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall reasonably request be true and correct in all material respects (except that, to evidence the extent any representation or warranty is qualified by materiality or Material Adverse Effect or similar language, such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and discharge.effect as if made on and as of such date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except that, to the extent any such representation or warranty is qualified by materiality or Material Adverse Effect or similar language, such representation or warranty shall have been true and correct in all respects) on and as of such earlier date); (v) the Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release; and (vi) at least 75 Properties shall be Eligible Properties included in the calculation of Unencumbered Asset Value after giving effect to such release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request. LEGAL 4867-4266-3982v.3
Appears in 1 contract
Sources: Credit Agreement (NETSTREIT Corp.)
Guarantors. (a) The Guarantors as of the Effective Date are set forth on Schedule 10.14 hereto.
(b) Upon any Subsidiary incurring, issuing or guaranteeing any debt securities or any other Material Indebtedness, within thirty (30) days thereafter, the Borrower Company shall cause such Subsidiary each of its Restricted Subsidiaries (other than Immaterial Subsidiaries) to execute the Guarantee Agreement guarantee pursuant to an Addendum the Multiparty Guaranty or supplement or counterpart thereto in the form of Annex I to the Guarantee Agreement(or, and in the case of a Significant Foreign Subsidiary, any other guaranty agreement requested by the Required Holders) the obligations of the Company evidenced by the Notes and under the other Transaction Documents. In furtherance of the above, after the formation or acquisition of any Restricted Subsidiary or the occurrence of a Subsidiary Redesignation, the Company shall promptly (and in any event upon the earlier of (x) such time as such Restricted Subsidiary becomes a guarantor, co-borrower or other obligor under the Credit Agreement and (y) within 45 days after such formation or acquisition or such Subsidiary Redesignation): (i) provide written notice to the holders of Notes upon any Person becoming a Subsidiary, setting forth information in reasonable detail describing all of the assets of such Person; (ii) cause such Person (other than any Immaterial Subsidiary) to execute a supplement or counterpart to the Multiparty Guaranty and such other Collateral Documents as are necessary for the Company and its Subsidiaries to comply with Section 9.8; (iii) cause the Applicable Pledge Percentage of the issued and outstanding equity interests of such Person and each other Pledge Subsidiary to be delivered to the Collateral Agent (together with undated stock powers signed in blank, if applicable) and pledged to the Collateral Agent pursuant to an appropriate pledge agreement(s) in substantially the form of the Pledge and Security Agreement (or joinder or other supplement thereto) and otherwise in form reasonably acceptable to the Required Holders; and (iv) deliver documentationsuch other documentation as the Required Holders may reasonably request in connection with the foregoing, including certified resolutions and other authority documents of such Person and, to the extent requested by the Administrative AgentRequired Holders, similar favorable opinions of counsel to that described such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above), all in Section 5.01(b) form, content and (c) relating to the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance scope reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with Required Holders. Notwithstanding the Lenders that each Specified Guarantor isforegoing, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any no Foreign Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall to execute and deliver the Multiparty Guaranty (or supplement thereto) or such other guaranty agreement if such execution and delivery would cause a Deemed Dividend Problem or a Financial Assistance Problem with respect to such Foreign Subsidiary and, in lieu thereof, the Borrower such documents as Company and the Borrower relevant Restricted Subsidiaries shall reasonably request provide the pledge agreements required under this Section 9.7 or Section 9.8. Notwithstanding the foregoing, the Company will be required to evidence such release and dischargecomply with this Section 9.7 with respect to any Immaterial Subsidiary if it ceases to be an Immaterial Subsidiary under the terms of the definition thereof.
Appears in 1 contract
Sources: Senior Secured Note Purchase Agreement (Encore Capital Group Inc)
Guarantors. In the event that any Restricted Company shall form or acquire any new subsidiary after the date hereof (aand in the event that NCI shall form or acquire any new subsidiary after the date hereof constituting a "Restricted Subsidiary" under and as defined in the Public Note Indentures or shall designate an existing Unrestricted Company as a "Restricted Subsidiary" under and as defined in the Public Note Indentures), such Credit Party will, within five Business Days of such formation or acquisition, cause such new subsidiary (or such "Restricted Subsidiary"):
(i) The Guarantors to execute and deliver to the Collateral Agent a Joinder Agreement (and thereby become a party to this Agreement, as a "Restricted Company" hereunder, and the Restricted Company Guarantee and Security Agreement as a "Guarantor" thereunder) and to pledge and grant a security interest in its property pursuant to the Restricted Company Guarantee and Security Agreement to the Collateral Agent for the benefit of the Effective Date are set forth on Schedule 10.14 hereto.Lenders;
(bii) Upon any Subsidiary incurringto take such action (including delivering such shares of stock and executing and delivering such Uniform Commercial Code financing statements) as shall be necessary to create and perfect valid and enforceable first priority Liens consistent with the provisions of the Security Documents, issuing on substantially all of the shares of stock and property of such new CREDIT AGREEMENT subsidiary (or guaranteeing any debt securities or any such "Restricted Subsidiary") under the Restricted Company Guarantee and Security Agreement; and
(iii) to deliver such proof of corporate action, incumbency of officers and other Material Indebtednessdocuments (including opinions of counsel, within thirty (30) days thereafter, the Borrower shall cause such Subsidiary to execute the Guarantee Agreement pursuant to an Addendum thereto in the form of Annex I to the Guarantee Agreement, and but only in the case of any such subsidiary, or group of subsidiaries, that in the aggregate have assets with a Significant Subsidiary, to deliver documentation, fair market value exceeding $25,000,000 and then only to the extent requested by either Agent) as are consistent with those delivered by each Restricted Company pursuant to Section 5.01 upon the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to Effective Date or as either Agent shall have requested. Notwithstanding the authorization for, execution and delivery of, and validity of such Significant Subsidiary’s obligations as a Guarantor, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Documentforegoing, (ix) upon the Consummation no Off-Balance Sheet Company shall be required to execute and deliver any Joinder Agreement (or take any of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separationother actions) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting referred to in clause (i) above, and no Off-Balance Sheet Company shall become a "Restricted Company" for purposes of this Agreement, but any Restricted Company that owns any shares of stock or other than equity interest in any Specified GuarantorNon-Core Company or Off-Balance Sheet Company shall take the actions specified in clause (ii) from its incurrence, issuance above with respect to such stock or other equity interests and guarantee of any (y) no subsidiary that is an "Unrestricted Subsidiary" under and all debt securities or any other Material Indebtedness, such Guarantor as defined in the Public Note Indentures shall be automatically designated as a "Restricted Subsidiary" under and unconditionally released as defined in the Public Note Indentures unless immediately prior thereto and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request after giving effect thereto, no Default shall have occurred and sole expense of the Borrower following any such release and discharge, the Administrative Agent shall execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such release and dischargebe continuing.
Appears in 1 contract
Guarantors. (a) The Guarantors Company will cause each of its Subsidiaries that guarantees or otherwise becomes liable at any time, whether as a borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under any Material Credit Facility to concurrently therewith:
(i) enter into an agreement in form and substance satisfactory to the Required Holders providing for the guaranty by such Subsidiary, on a joint and several basis with all other such Subsidiaries, of (x) the prompt payment in full when due of all amounts payable by the Company pursuant to the Notes (whether for principal, interest, Make-Whole Amount or otherwise) and this Agreement, including all indemnities, fees and expenses payable by the Company thereunder and (y) the prompt, full and faithful performance, observance and discharge by the Company of each and every covenant, agreement, undertaking and provision required pursuant to the Notes or this Agreement to be performed, observed or discharged by it (a “Subsidiary Guaranty”); and
(ii) deliver the following to each holder of a Note:
(A) an executed counterpart of such Subsidiary Guaranty;
(B) a certificate signed by an authorized responsible officer of such Subsidiary containing representations and warranties on behalf of such Subsidiary to the same effect, mutatis mutandis, as those contained in Sections 5.1, 5.2, 5.6, and 5.7 of this Agreement (but with respect to such Subsidiary and such Subsidiary Guaranty rather than the Company);
(C) all documents as may be reasonably requested by the Required Holders to evidence the due organization, continuing existence and, where applicable, good standing of such Subsidiary and the due authorization by all requisite action on the part of such Subsidiary of the Effective Date are set forth on Schedule 10.14 heretoexecution and delivery of such Subsidiary Guaranty and the performance by such Subsidiary of its obligations thereunder; and
(D) an opinion of counsel reasonably satisfactory to the Required Holders covering such matters relating to such Subsidiary and such Subsidiary Guaranty as the Required Holders may reasonably request.
(b) Upon At the election of the Company and by written notice to each holder of Notes, any Subsidiary incurring, issuing Guarantor that has provided a Subsidiary Guaranty under subparagraph (a) of this Section 9.8 may be discharged from all of its obligations and liabilities under its Subsidiary Guaranty and shall be automatically released from its obligations thereunder without the need for the execution or guaranteeing any debt securities or delivery of any other Material Indebtednessdocument by the holders, within thirty provided that (30i) days thereafter, the Borrower shall cause if such Subsidiary to execute Guarantor is a guarantor or is otherwise liable for or in respect of any Material Credit Facility, then such Subsidiary Guarantor has been released and discharged (or will be released and discharged concurrently with the Guarantee Agreement pursuant to an Addendum thereto in release of such Subsidiary Guarantor under its Subsidiary Guaranty) under such Material Credit Facility, (ii) at the form of Annex I to the Guarantee Agreement, and in the case of a Significant Subsidiary, to deliver documentation, to the extent requested by the Administrative Agent, similar to that described in Section 5.01(b) and (c) relating to the authorization for, execution and delivery time of, and validity of such Significant Subsidiary’s obligations as a Guarantorafter giving effect to, such documentation to be in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Borrower covenants and agrees with the Lenders that each Specified Guarantor is, and shall remain, an entity organized under the laws of any jurisdiction within the United States. For the avoidance of doubt, this Section 10.14(c) shall not prohibit the Freight Separation or any merger or consolidation of a Specified Guarantor; provided, that, in accordance with the definition of “Specified Guarantor”, any Person into which such Specified Guarantor is merged or consolidated, or to which all or substantially all of its assets are sold, transferred or disposed, shall become a Specified Guarantor and be subject to the provisions of this Section 10.14(c).
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) upon the Consummation of the Freight Separation, each of FedEx Corporation and its subsidiaries (but not, for the avoidance of doubt, any Subsidiary of the Borrower following Consummation of the Freight Separation) that is a Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement and the other Loan Documents without any further action required on the part of the Administrative Agent, any Lender or any other Person and (ii) upon the termination or release of any Guarantor (without limiting clause (i) above, other than any Specified Guarantor) from its incurrence, issuance and guarantee of any and all debt securities or any other Material Indebtedness, such Guarantor shall be automatically and unconditionally released and discharged from all its obligations under the Guarantee Agreement without any further action required on the part of the Administrative Agent or any Lender. At the request and sole expense of the Borrower following any such release and discharge, no Default or Event of Default shall be existing, (iii) no amount is then due and payable under such Subsidiary Guaranty, (iv) if in connection with such Subsidiary Guarantor being released and discharged under any Material Credit Facility, any fee or other form of consideration is given to any holder of Indebtedness under such Material Credit Facility for such release, the Administrative Agent holders of the Notes shall execute receive equivalent consideration substantially concurrently therewith, and deliver (v) each holder shall have received a certificate of a Responsible Officer certifying as to the Borrower matters set forth in clauses (i) through (iv). In the event of any such documents as the Borrower release, for purposes of Section 10.1, all Indebtedness of such Subsidiary shall reasonably request be deemed to evidence have been incurred concurrently with such release and discharge.release. UNITIL CORPORATION Note Purchase Agreement
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