Release of Subsidiary Guarantors. (a) Within five (5) Business Days following the written request by the Parent Guarantor, the Administrative Agent, on behalf of the Lenders, shall release all Subsidiary Guarantors from their respective obligations under this Agreement and each other Loan Document so long as: (i) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such release; (ii) the Borrower or the Parent Guarantor shall have received and have in effect at such time an Investment Grade Rating; and (iii) a Responsible Officer of the Parent Guarantor shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent stating that each Subsidiary Guarantor is either being released from its obligations under any Senior Financing Transaction or has not then provided (and is not then required by the terms of such Senior Financing Transaction to provide) a guaranty with respect to any Senior Financing Transaction to which any Loan Party is a party or to which it is simultaneously (or substantially simultaneously) entering into; provided, however, that in the event the Parent Guarantor is not able to make such statement with respect to any specific Subsidiary Guarantor, such Subsidiary Guarantor shall not be released from its obligations under this Agreement and each other Loan Document until the Parent Guarantor makes such statement with respect to such Subsidiary Guarantor, but all other Subsidiary Guarantors shall be released as provided herein (collectively, clauses (i), (ii) and (iii) shall be considered a “Release Event”). In addition, following a Release Event, a Subsidiary of the Parent Guarantor shall not be required to become a Guarantor hereunder unless and until such Subsidiary thereafter becomes a guarantor or borrower in respect of a Senior Financing Transaction, in which case such Subsidiary shall become a Guarantor in accordance with Section 5.01(j)(v). (b) In addition to the foregoing, at any time prior to the date on which the Borrower or the Parent Guarantor shall have received and then have in effect an Investment Grade Rating, within five (5) Business Days after the written request of the Parent Guarantor (each, an “Early Release Request”), including but not limited to, in connection with the sale or financing of any applicable Unencumbered Asset then being designated as a non-Unencumbered Asset as permitted hereunder or the designation or redesignation of a Restricted Subsidiary as an Unrestricted Subsidiary as permitted hereunder, the Administrative Agent, on behalf of the Lenders, shall release the Subsidiary Guarantors designated in such request from their respective obligations under this Agreement and each other Loan Document so long as: (i) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such release; (ii) immediately following such release the Borrower and the Parent Guarantor shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such release; and (iii) the Parent Guarantor shall have delivered to the Administrative Agent (A) a certificate confirming compliance with (i) and (ii) above and (B) an updated Schedule II listing each Unencumbered Asset as of the date such Subsidiary Guarantor is removed as a Guarantor hereunder. (c) At the written request of the Parent, the Administrative Agent, on behalf of the Lender Parties, shall be authorized to (i) release the Parent from its payment obligations with respect to the Guaranty or (ii) cap the amount of such obligations in a manner satisfactory to the Administrative Agent (any of the actions described in clauses (i) and (ii), a “Subject Action”), so long as (A)(1) in the case of a release, the Parent is either then being released from its Obligations as an obligor under each Senior Financing Transaction or is not then an obligor (and is not then required by the terms of any Senior Financing Transaction to become an obligor) with respect to any Senior Financing Transaction or (2) in the case of a liability cap, the Obligations of the Parent under each Senior Financing Transaction are subject to a parallel liability cap satisfactory to the Administrative Agent, (B) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such Subject Action; (C) immediately following such Subject Action the Borrower and the Parent shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such Subject Action; (D) the Parent shall have delivered to the Administrative Agent a certificate confirming compliance with clauses (B) and (C) above and (E) during the period commencing on the date on which any Subject Action occurs and ending the date (if any) on which the Parent is reinstated as a Guarantor or the liability cap is lifted, as applicable, in accordance with Section 9.14(d) below (such period being the “Subject Period”), the provisions of Section 9.14(e) below shall apply. For the avoidance of doubt, (i) no Subject Action shall release the Parent from any of its Obligations other than its payment Obligations as a Guarantor (and it is the intent of the parties that the Parent shall continue to be bound by all other covenants, representations and other provisions hereof applicable to it notwithstanding the occurrence of any such Subject Action) and only, in the case of a liability cap, to the extent of such cap (provided, however, that such covenants, representations and other provisions shall be deemed to be revised, mutatis mutandis, to the extent necessary to reflect that the Parent is a Loan Party but not a Guarantor) and (ii) the covenants in Section 5.04 shall continue to be calculated based on the Consolidated Group. (d) Notwithstanding the foregoing, if at any time following a Subject Action (w) the Parent becomes an obligor in respect of a Senior Financing Transaction, (x) the Parent is no longer subject to a parallel liability cap under any Senior Financing Transaction, (y) the Internal Revenue Service issues guidance clarifying that parent guaranties do not preclude the allocation of related debt in satisfaction of “negative basis” issues or (z) the Parent breaches any provision of Section 9.14(e) below, then, as applicable, the Parent shall be reinstated as a Guarantor hereunder or the liability cap on the Parent’s payment obligations under the Guaranty shall be lifted so that the Obligations of the Parent under the Loan Documents shall be pari passu with the Obligations of the Parent under each Senior Financing Transaction, and the Parent shall execute and deliver such confirmations and ratifications of the Guaranty as the Administrative Agent shall request within five (5) Business Days after such request. (e) Without limiting the provisions of Section 5.02(n), at all times during the Subject Period, (i) the Parent shall not directly hold cash in excess of a de minimis amount, other than on a temporary or pass-through basis held for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), (ii) the Parent’s direct ownership in the Borrower shall at all times account for at least 95% of Total Asset Value; provided, however, that the Parent may hold assets directly on a temporary or pass-through basis for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), and (iii) the Parent shall not incur any direct liabilities in excess of the value of its assets that are not held by the Borrower and its Subsidiaries
Appears in 1 contract
Sources: Term Loan Agreement (Easterly Government Properties, Inc.)
Release of Subsidiary Guarantors. (aNotwithstanding anything in Section 9.02(b) Within five (5) Business Days following the written request by the Parent Guarantor, the Administrative Agent, on behalf of the Lenders, shall release all Subsidiary Guarantors from their respective obligations under this Agreement and each other Loan Document so long as: (i) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such release; (ii) the Borrower or the Parent Guarantor shall have received and have in effect at such time an Investment Grade Rating; and (iii) a Responsible Officer of the Parent Guarantor shall have delivered to the Administrative Agent contrary, a certificate in form and substance reasonably satisfactory to the Administrative Agent stating that each Subsidiary Guarantor is either being released from its obligations under any Senior Financing Transaction or has not then provided (and is not then required by other than, for the terms avoidance of such Senior Financing Transaction to providedoubt, Netsmart Technologies) a guaranty with respect to any Senior Financing Transaction to which any Loan Party is a party or to which it is simultaneously (or substantially simultaneously) entering into; provided, however, that in the event the Parent Guarantor is not able to make such statement with respect to any specific Subsidiary Guarantor, such Subsidiary Guarantor shall not automatically be released from its obligations under this Agreement hereunder and each other its Loan Document until the Parent Guarantor makes such statement with respect to such Subsidiary Guarantor, but all other Subsidiary Guarantors Guaranty shall be automatically released as provided herein (collectively, clauses (i), (iia) and (iii) shall be considered a “Release Event”). In addition, following a Release Event, a Subsidiary of upon the Parent Guarantor shall not be required to become a Guarantor hereunder unless and until such Subsidiary thereafter becomes a guarantor or borrower in respect of a Senior Financing Transaction, in which case such Subsidiary shall become a Guarantor in accordance with Section 5.01(j)(v).
(b) In addition to the foregoing, at any time prior to the date on which the Borrower or the Parent Guarantor shall have received and then have in effect an Investment Grade Rating, within five (5) Business Days after the written request of the Parent Guarantor (each, an “Early Release Request”), including but not limited to, in connection with the sale or financing consummation of any applicable Unencumbered Asset then being designated transaction or related series of transactions permitted hereunder if as a non-Unencumbered Asset as permitted hereunder or the designation or redesignation of a Restricted Subsidiary as an Unrestricted Subsidiary as permitted hereunder, the Administrative Agent, on behalf of the Lenders, shall release the Subsidiary Guarantors designated in such request from their respective obligations under this Agreement and each other Loan Document so long as: (i) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such release; (ii) immediately following such release the Borrower and the Parent Guarantor shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such release; and (iii) the Parent Guarantor shall have delivered to the Administrative Agent (A) a certificate confirming compliance with (i) and (ii) above and (B) an updated Schedule II listing each Unencumbered Asset as of the date result thereof such Subsidiary Guarantor is removed as shall cease to be a Guarantor hereunder.
Subsidiary (c) At the written request of the Parent, the Administrative Agent, on behalf of the Lender Parties, shall be authorized to (i) release the Parent from its payment obligations with respect to the Guaranty or (ii) cap the amount of such obligations becomes an Excluded Subsidiary in a manner satisfactory to transaction that was not entered into for the Administrative Agent (any primary purpose of the actions described in clauses (i) and (iibecoming an Excluded Subsidiary), a “Subject Action”), so long as (A)(1) in the case of a release, the Parent is either then being released from its Obligations as an obligor under each Senior Financing Transaction or is not then an obligor (and is not then required by the terms of any Senior Financing Transaction to become an obligor) with respect to any Senior Financing Transaction or (2) in the case of a liability cap, the Obligations of the Parent under each Senior Financing Transaction are subject to a parallel liability cap satisfactory to the Administrative Agent, (B) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such Subject Action; (C) immediately following such Subject Action the Borrower and the Parent shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such Subject Action; (D) the Parent shall have delivered to the Administrative Agent a certificate confirming compliance with clauses (B) and (C) above and (E) during the period commencing on the date on which any Subject Action occurs and ending the date (if any) on which the Parent is reinstated as a Guarantor or the liability cap is lifted, as applicable, in accordance with Section 9.14(d) below (such period being the “Subject Period”), the provisions of Section 9.14(e) below shall apply. For the avoidance of doubt, (i) no Subject Action shall release the Parent from any of its Obligations other than its payment Obligations as a Guarantor (and it is the intent of the parties that the Parent shall continue to be bound by all other covenants, representations and other provisions hereof applicable to it notwithstanding the occurrence of any such Subject Action) and only, in the case of a liability cap, to the extent of such cap (provided, however, that such covenants, representations and other provisions shall be deemed to be revised, mutatis mutandis, to the extent necessary to reflect that the Parent is a Loan Party but not a Guarantor) and (ii) the covenants in Section 5.04 shall continue to be calculated based on the Consolidated Group.
(d) Notwithstanding the foregoing, if at any time following a Subject Action (w) the Parent becomes an obligor in respect of a Senior Financing Transaction, (x) the Parent is no longer subject to a parallel liability cap under any Senior Financing Transaction, (y) the Internal Revenue Service issues guidance clarifying that parent guaranties do not preclude the allocation of related debt in satisfaction of “negative basis” issues or (z) the Parent breaches any provision of Section 9.14(e) below, then, as applicable, the Parent shall be reinstated as a Guarantor hereunder or the liability cap on the Parent’s payment obligations under the Guaranty shall be lifted so that the Obligations of the Parent under the Loan Documents shall be pari passu with the Obligations of the Parent under each Senior Financing Transaction, and the Parent shall execute and deliver such confirmations and ratifications of the Guaranty as the Administrative Agent shall request within five (5) Business Days after such request.
(e) Without limiting the provisions of Section 5.02(n), at all times during the Subject Period, (i) the Parent shall not directly hold cash in excess of a de minimis amount, other than on a temporary or pass-through basis held for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), (ii) the Parent’s direct ownership in the Borrower shall at all times account for at least 95% of Total Asset Value; provided, however, that the Parent may hold assets directly on release of any Subsidiary Guarantor from its obligations under this Agreement if such Subsidiary Guarantor becomes an Excluded Subsidiary of the type described in clause (a) of the definition thereof shall only be permitted if at the time such Guarantor becomes an Excluded Subsidiary of such type (1) no Default or Event of Default shall have occurred and be outstanding, (2) after giving effect to such release and the consummation of the transaction that causes such Person to be an Excluded Subsidiary of such type, the Borrowers are deemed to have made a temporary or pass-through basis new Investment in such Person for not more purposes of Section 6.06 (as if such Person were then newly acquired) and such Investment is permitted pursuant to Section 6.06 (other than one Business Day in accordance Section 6.06(f)) at such time and (3) a Responsible Officer of the Borrower Representative certifies to the Administrative Agent compliance with Sections 5.02(n)(iii)(Apreceding clauses (1) and (B2); provided, further, that no such release shall occur if such Subsidiary Guarantor is an obligor hereunder or is an obligor or continues to be a guarantor in respect of the Second Lien Facility, any Incremental Equivalent Debt or any Refinancing Indebtedness in respect of any of the foregoing, or (b) upon the occurrence of the Termination Date; provided that, to the extent any Subsidiary became a Subsidiary Guarantor in order to consummate a merger, consolidation or amalgamation permitted under clause (y) (A) of the proviso to Section 6.07(a)(ii), and any such release under clause (iiia) the Parent hereof shall not incur any direct liabilities in excess constitute an Investment as if such merger, consolidation or amalgamation had been consummated pursuant to clause (y) of the value proviso to Section 6.07(a)(ii)(y) as of its assets the date of such release. In connection with any such release, the Administrative Agent shall promptly execute and deliver to any Subsidiary Guarantor, at such Subsidiary Guarantor’s expense, all documents that are not held such Subsidiary Guarantor shall reasonably request to evidence termination or release. Any execution and delivery of documents pursuant to the preceding sentence of this Section 10.12 shall be without recourse to or warranty by the Borrower Administrative Agent (other than as to the Administrative Agent’s authority to execute and its Subsidiariesdeliver such documents).
Appears in 1 contract
Sources: First Lien Credit Agreement (Allscripts Healthcare Solutions, Inc.)
Release of Subsidiary Guarantors. A Subsidiary Guarantor shall be automatically released from this Guaranty, and any Liens granted by such Subsidiary Guarantor in respect of the Obligations shall be automatically released, if: (a) Within five (5) Business Days following the written request by the Parent Guarantor, the Administrative Agent, on behalf of the Lenders, shall release all Subsidiary Guarantors from their respective obligations under this Agreement and each other Loan Document so long as: (i) there such Subsidiary Guarantor is no monetary Event not a Wholly-Owned Subsidiary or ceases to be a Wholly-Owned Subsidiary of Default existing under the Parent Guarantor in a transaction not prohibited by this Agreement at the time of such request and no Default or Event of Default will exist immediately following such release; (ii) the Borrower or otherwise requests such release and, in the Parent Guarantor shall have received and have in effect at such time an Investment Grade Rating; case of each of clauses (a)(i) and (iii) a Responsible Officer of the Parent Guarantor shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent stating that each Subsidiary Guarantor is either being released from its obligations under any Senior Financing Transaction or has not then provided (and is not then required by the terms of such Senior Financing Transaction to provide) a guaranty with respect a)(ii), after giving effect to any Senior Financing Transaction to which any Loan Party is a party or to which it is simultaneously (or substantially simultaneously) entering into; provided, however, that in the event the Parent Guarantor is not able to make such statement with respect to any specific Subsidiary Guarantorrelease, such Subsidiary Guarantor shall not be released from its obligations under this Agreement and each other Loan Document until the Parent Guarantor makes such statement with respect to such Subsidiary Guarantora borrower or a guarantor, but all other Subsidiary Guarantors shall be released as provided herein (collectivelyor otherwise have a payment obligation, clauses (i), (ii) and (iii) shall be considered a “Release Event”). In addition, following a Release Event, a Subsidiary of the Parent Guarantor shall not be required to become a Guarantor hereunder unless and until such Subsidiary thereafter becomes a guarantor or borrower in respect of a Senior Financing Transaction, in which case such Subsidiary shall become a Guarantor in accordance with Section 5.01(j)(v).
any Enterprise Unsecured Debt and (b) In addition to the foregoing, at any time prior to the date on which the Borrower or the Parent Guarantor Administrative Agent shall have received and then have in effect an Investment Grade Rating, within five (5) Business Days after the written request a certificate of the Parent Guarantor Borrower signed by a Responsible Officer certifying that, as of the date of such release, (each, an “Early Release Request”x) the matters set forth in clause (a)(i) or (a)(ii), including but not limited toas applicable, in connection with the sale or financing of any applicable Unencumbered Asset then being designated as a non-Unencumbered Asset as permitted hereunder or the designation or redesignation of a Restricted Subsidiary as an Unrestricted Subsidiary as permitted hereunderare true and correct, the Administrative Agent, on behalf of the Lenders, shall release the Subsidiary Guarantors designated in such request from their respective obligations under this Agreement and each other Loan Document so long as: (iy) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will shall then exist immediately following or would occur as a result of such release; (ii) immediately following such release the Borrower and the Parent Guarantor shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such release; releases and (iiiz) the Parent Guarantor shall have delivered to representations and warranties contained in Article V and in the Administrative Agent other Loan Documents are true and correct in all material respects (A) a certificate confirming compliance with (i) and (ii) above and (B) an updated Schedule II listing each Unencumbered Asset as of the date such Subsidiary Guarantor is removed as a Guarantor hereunder.
(c) At the written request of the Parent, the Administrative Agent, on behalf of the Lender Parties, shall be authorized to (i) release the Parent from its payment obligations with respect to the Guaranty or (ii) cap the amount of such obligations in a manner satisfactory to the Administrative Agent (any of the actions described in clauses (i) and (ii), a “Subject Action”), so long as (A)(1) except in the case of a releaserepresentation 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 Parent is either then being released from its Obligations date of release of such Subsidiary Guarantor (other than the representations and warranties in Section 5.05(c) and Section 5.22, which shall be made only as of the Second Amendment Effective Date), except to the extent that such representations and warranties specifically refer to an obligor under each Senior Financing Transaction or is not then an obligor earlier date, in which case they were true and correct in all material respects (and is not then required by the terms of any Senior Financing Transaction to become an obligor) with respect to any Senior Financing Transaction or (2) except in the case of a liability caprepresentation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall have been true and correct in all respects) as of such earlier date, and except that for purposes of this Section 12.10, the Obligations of the Parent under each Senior Financing Transaction are subject to a parallel liability cap satisfactory to the Administrative Agent, representations and warranties contained in subsections (B) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such Subject Action; (C) immediately following such Subject Action the Borrower and the Parent shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such Subject Action; (D) the Parent shall have delivered to the Administrative Agent a certificate confirming compliance with clauses (Ba) and (Cb) above and (E) during the period commencing on the date on which any Subject Action occurs and ending the date (if any) on which the Parent is reinstated as a Guarantor or the liability cap is lifted, as applicable, in accordance with Section 9.14(d) below (such period being the “Subject Period”), the provisions of Section 9.14(e) below shall apply. For the avoidance of doubt, (i) no Subject Action shall release the Parent from any of its Obligations other than its payment Obligations as a Guarantor (and it is the intent of the parties that the Parent shall continue to be bound by all other covenants, representations and other provisions hereof applicable to it notwithstanding the occurrence of any such Subject Action) and only, in the case of a liability cap, to the extent of such cap (provided, however, that such covenants, representations and other provisions 5.05 shall be deemed to be revised, mutatis mutandis, refer to the extent necessary most recent statements furnished pursuant to reflect that the Parent is a Loan Party but not a Guarantorsubsections (a) and (ii) the covenants in Section 5.04 shall continue to be calculated based on the Consolidated Group.
(d) Notwithstanding the foregoingb), if at any time following a Subject Action (w) the Parent becomes an obligor in respect of a Senior Financing Transactionrespectively, (x) the Parent is no longer subject to a parallel liability cap under any Senior Financing Transaction, (y) the Internal Revenue Service issues guidance clarifying that parent guaranties do not preclude the allocation of related debt in satisfaction of “negative basis” issues or (z) the Parent breaches any provision of Section 9.14(e) below, then, as applicable, the Parent shall be reinstated as a Guarantor hereunder or the liability cap on the Parent’s payment obligations under the Guaranty shall be lifted so that the Obligations of the Parent under the Loan Documents shall be pari passu with the Obligations of the Parent under each Senior Financing Transaction, and the Parent shall execute and deliver such confirmations and ratifications of the Guaranty as the 6.01. The Administrative Agent shall agrees to furnish to the Borrower, promptly after the Borrower’s request within five (5) Business Days after such request.
(e) Without limiting and at the provisions of Section 5.02(n)Borrower’s sole cost and expense, at all times during any release, termination, or other agreement or document as is reasonably necessary or advisable to evidence the Subject Period, (i) the Parent shall not directly hold cash in excess of a de minimis amount, other than on a temporary foregoing release or pass-through basis held for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), (ii) the Parent’s direct ownership in the Borrower shall at all times account for at least 95% of Total Asset Value; provided, however, that the Parent as may hold assets directly on a temporary or pass-through basis for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), and (iii) the Parent shall not incur any direct liabilities in excess of the value of its assets that are not held be reasonably requested by the Borrower and its SubsidiariesBorrower.
Appears in 1 contract
Release of Subsidiary Guarantors. A Subsidiary Guarantor shall be automatically released from this Guaranty, and any Liens granted by such Subsidiary Guarantor in respect of the Obligations shall be automatically released, if: (a) Within five (5) Business Days following the written request by the Parent Guarantor, the Administrative Agent, on behalf of the Lenders, shall release all Subsidiary Guarantors from their respective obligations under this Agreement and each other Loan Document so long as: (i) there such Subsidiary Guarantor is no monetary Event not a Wholly-Owned Subsidiary or ceases to be a Wholly-Owned Subsidiary of Default existing under the Parent Guarantor in a transaction not prohibited by this Agreement at the time of such request and no Default or Event of Default will exist immediately following such release; (ii) the Borrower or otherwise requests such release and, in the Parent Guarantor shall have received and have in effect at such time an Investment Grade Rating; case of each of clauses (a)(i) and (iii) a Responsible Officer of the Parent Guarantor shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent stating that each Subsidiary Guarantor is either being released from its obligations under any Senior Financing Transaction or has not then provided (and is not then required by the terms of such Senior Financing Transaction to provide) a guaranty with respect a)(ii), after giving effect to any Senior Financing Transaction to which any Loan Party is a party or to which it is simultaneously (or substantially simultaneously) entering into; provided, however, that in the event the Parent Guarantor is not able to make such statement with respect to any specific Subsidiary Guarantorrelease, such Subsidiary Guarantor shall not be released from its obligations under this Agreement and each other Loan Document until the Parent Guarantor makes such statement with respect to such Subsidiary Guarantora borrower or a guarantor, but all other Subsidiary Guarantors shall be released as provided herein (collectivelyor otherwise have a payment obligation, clauses (i), (ii) and (iii) shall be considered a “Release Event”). In addition, following a Release Event, a Subsidiary of the Parent Guarantor shall not be required to become a Guarantor hereunder unless and until such Subsidiary thereafter becomes a guarantor or borrower in respect of a Senior Financing Transaction, in which case such Subsidiary shall become a Guarantor in accordance with Section 5.01(j)(v).
any Enterprise Unsecured Debt and (b) In addition to the foregoing, at any time prior to the date on which the Borrower or the Parent Guarantor Administrative Agent shall have received and then have in effect an Investment Grade Rating, within five (5) Business Days after the written request a certificate of the Parent Guarantor Borrower signed by a Responsible Officer certifying that, as of the date of such release, (each, an “Early Release Request”x) the matters set forth in clause (a)(i) or (a)(ii), including but not limited toas applicable, in connection with the sale or financing of any applicable Unencumbered Asset then being designated as a non-Unencumbered Asset as permitted hereunder or the designation or redesignation of a Restricted Subsidiary as an Unrestricted Subsidiary as permitted hereunderare true and correct, the Administrative Agent, on behalf of the Lenders, shall release the Subsidiary Guarantors designated in such request from their respective obligations under this Agreement and each other Loan Document so long as: (iy) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will shall then exist immediately following or would occur as a result of such release; (ii) immediately following such release the Borrower and the Parent Guarantor shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such release; releases and (iiiz) the Parent Guarantor shall have delivered to representations and warranties contained in Article V and in the Administrative Agent other Loan Documents are true and correct in all material respects (A) a certificate confirming compliance with (i) and (ii) above and (B) an updated Schedule II listing each Unencumbered Asset as of the date such Subsidiary Guarantor is removed as a Guarantor hereunder.
(c) At the written request of the Parent, the Administrative Agent, on behalf of the Lender Parties, shall be authorized to (i) release the Parent from its payment obligations with respect to the Guaranty or (ii) cap the amount of such obligations in a manner satisfactory to the Administrative Agent (any of the actions described in clauses (i) and (ii), a “Subject Action”), so long as (A)(1) except in the case of a releaserepresentation 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 Parent is either then being released from its Obligations date of release of such Subsidiary Guarantor (other than the representations and warranties in Section 5.05(c) and Section 5.22, which shall be made only as of the Second Amendment Effective Date), except to the extent that such representations and warranties specifically refer to an obligor under each Senior Financing Transaction or is not then an obligor earlier date, in which case they were true and correct in all material respects (and is not then required by the terms of any Senior Financing Transaction to become an obligor) with respect to any Senior Financing Transaction or (2) except in the case of a liability caprepresentation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall have been true and correct in all respects) as of such earlier date, and except that for purposes of this Section 12.10, the Obligations of the Parent under each Senior Financing Transaction are subject to a parallel liability cap satisfactory to the Administrative Agent, representations and warranties contained in subsections (B) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such Subject Action; (C) immediately following such Subject Action the Borrower and the Parent shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such Subject Action; (D) the Parent shall have delivered to the Administrative Agent a certificate confirming compliance with clauses (Ba) and (Cb) above and (E) during the period commencing on the date on which any Subject Action occurs and ending the date (if any) on which the Parent is reinstated as a Guarantor or the liability cap is lifted, as applicable, in accordance with Section 9.14(d) below (such period being the “Subject Period”), the provisions of Section 9.14(e) below shall apply. For the avoidance of doubt, (i) no Subject Action shall release the Parent from any of its Obligations other than its payment Obligations as a Guarantor (and it is the intent of the parties that the Parent shall continue to be bound by all other covenants, representations and other provisions hereof applicable to it notwithstanding the occurrence of any such Subject Action) and only, in the case of a liability cap, to the extent of such cap (provided, however, that such covenants, representations and other provisions 5.05 shall be deemed to be revised, mutatis mutandis, refer to the extent necessary most recent statements furnished pursuant to reflect that the Parent is a Loan Party but not a Guarantorsubsections (a) and (ii) the covenants in Section 5.04 shall continue to be calculated based on the Consolidated Group.b), respectively, of Section
(d) Notwithstanding the foregoing, if at any time following a Subject Action (w) the Parent becomes an obligor in respect of a Senior Financing Transaction, (x) the Parent is no longer subject to a parallel liability cap under any Senior Financing Transaction, (y) the Internal Revenue Service issues guidance clarifying that parent guaranties do not preclude the allocation of related debt in satisfaction of “negative basis” issues or (z) the Parent breaches any provision of Section 9.14(e) below, then, as applicable, the Parent shall be reinstated as a Guarantor hereunder or the liability cap on the Parent’s payment obligations under the Guaranty shall be lifted so that the Obligations of the Parent under the Loan Documents shall be pari passu with the Obligations of the Parent under each Senior Financing Transaction, and the Parent shall execute and deliver such confirmations and ratifications of the Guaranty as the 6.01. The Administrative Agent shall agrees to furnish to the Borrower, promptly after the Borrower’s request within five (5) Business Days after such request.
(e) Without limiting and at the provisions of Section 5.02(n)Borrower’s sole cost and expense, at all times during any release, termination, or other agreement or document as is reasonably necessary or advisable to evidence the Subject Period, (i) the Parent shall not directly hold cash in excess of a de minimis amount, other than on a temporary foregoing release or pass-through basis held for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), (ii) the Parent’s direct ownership in the Borrower shall at all times account for at least 95% of Total Asset Value; provided, however, that the Parent as may hold assets directly on a temporary or pass-through basis for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), and (iii) the Parent shall not incur any direct liabilities in excess of the value of its assets that are not held be reasonably requested by the Borrower and its SubsidiariesBorrower.
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Release of Subsidiary Guarantors. (aNotwithstanding anything in Section 9.02(b) Within five (5) Business Days following the written request by the Parent Guarantor, the Administrative Agent, on behalf of the Lenders, shall release all Subsidiary Guarantors from their respective obligations under this Agreement and each other Loan Document so long as: (i) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such release; (ii) the Borrower or the Parent Guarantor shall have received and have in effect at such time an Investment Grade Rating; and (iii) a Responsible Officer of the Parent Guarantor shall have delivered to the Administrative Agent contrary, a certificate in form and substance reasonably satisfactory to the Administrative Agent stating that each Subsidiary Guarantor is either being released from its obligations under any Senior Financing Transaction or has not then provided (and is not then required by other than, for the terms avoidance of such Senior Financing Transaction to providedoubt, Netsmart Technologies) a guaranty with respect to any Senior Financing Transaction to which any Loan Party is a party or to which it is simultaneously (or substantially simultaneously) entering into; provided, however, that in the event the Parent Guarantor is not able to make such statement with respect to any specific Subsidiary Guarantor, such Subsidiary Guarantor shall not automatically be released from its obligations under this Agreement hereunder and each other its Loan Document until the Parent Guarantor makes such statement with respect to such Subsidiary Guarantor, but all other Subsidiary Guarantors Guaranty shall be automatically released as provided herein (collectively, clauses (i), (iia) and (iii) shall be considered a “Release Event”). In addition, following a Release Event, a Subsidiary of upon the Parent Guarantor shall not be required to become a Guarantor hereunder unless and until such Subsidiary thereafter becomes a guarantor or borrower in respect of a Senior Financing Transaction, in which case such Subsidiary shall become a Guarantor in accordance with Section 5.01(j)(v).
(b) In addition to the foregoing, at any time prior to the date on which the Borrower or the Parent Guarantor shall have received and then have in effect an Investment Grade Rating, within five (5) Business Days after the written request of the Parent Guarantor (each, an “Early Release Request”), including but not limited to, in connection with the sale or financing consummation of any applicable Unencumbered Asset then being designated transaction or related series of transactions permitted hereunder if as a non-Unencumbered Asset as permitted hereunder or the designation or redesignation of a Restricted Subsidiary as an Unrestricted Subsidiary as permitted hereunder, the Administrative Agent, on behalf of the Lenders, shall release the Subsidiary Guarantors designated in such request from their respective obligations under this Agreement and each other Loan Document so long as: (i) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such release; (ii) immediately following such release the Borrower and the Parent Guarantor shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such release; and (iii) the Parent Guarantor shall have delivered to the Administrative Agent (A) a certificate confirming compliance with (i) and (ii) above and (B) an updated Schedule II listing each Unencumbered Asset as of the date result thereof such Subsidiary Guarantor is removed as shall cease to be a Guarantor hereunder.
Subsidiary (c) At the written request of the Parent, the Administrative Agent, on behalf of the Lender Parties, shall be authorized to (i) release the Parent from its payment obligations with respect to the Guaranty or (ii) cap the amount of such obligations becomes an Excluded Subsidiary in a manner satisfactory to transaction that was not entered into for the Administrative Agent (any primary purpose of the actions described in clauses (i) and (iibecoming an Excluded Subsidiary), a “Subject Action”), so long as (A)(1) in the case of a release, the Parent is either then being released from its Obligations as an obligor under each Senior Financing Transaction or is not then an obligor (and is not then required by the terms of any Senior Financing Transaction to become an obligor) with respect to any Senior Financing Transaction or (2) in the case of a liability cap, the Obligations of the Parent under each Senior Financing Transaction are subject to a parallel liability cap satisfactory to the Administrative Agent, (B) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such Subject Action; (C) immediately following such Subject Action the Borrower and the Parent shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such Subject Action; (D) the Parent shall have delivered to the Administrative Agent a certificate confirming compliance with clauses (B) and (C) above and (E) during the period commencing on the date on which any Subject Action occurs and ending the date (if any) on which the Parent is reinstated as a Guarantor or the liability cap is lifted, as applicable, in accordance with Section 9.14(d) below (such period being the “Subject Period”), the provisions of Section 9.14(e) below shall apply. For the avoidance of doubt, (i) no Subject Action shall release the Parent from any of its Obligations other than its payment Obligations as a Guarantor (and it is the intent of the parties that the Parent shall continue to be bound by all other covenants, representations and other provisions hereof applicable to it notwithstanding the occurrence of any such Subject Action) and only, in the case of a liability cap, to the extent of such cap (provided, however, that such covenants, representations and other provisions shall be deemed to be revised, mutatis mutandis, to the extent necessary to reflect that the Parent is a Loan Party but not a Guarantor) and (ii) the covenants in Section 5.04 shall continue to be calculated based on the Consolidated Group.
(d) Notwithstanding the foregoing, if at any time following a Subject Action (w) the Parent becomes an obligor in respect of a Senior Financing Transaction, (x) the Parent is no longer subject to a parallel liability cap under any Senior Financing Transaction, (y) the Internal Revenue Service issues guidance clarifying that parent guaranties do not preclude the allocation of related debt in satisfaction of “negative basis” issues or (z) the Parent breaches any provision of Section 9.14(e) below, then, as applicable, the Parent shall be reinstated as a Guarantor hereunder or the liability cap on the Parent’s payment obligations under the Guaranty shall be lifted so that the Obligations of the Parent under the Loan Documents shall be pari passu with the Obligations of the Parent under each Senior Financing Transaction, and the Parent shall execute and deliver such confirmations and ratifications of the Guaranty as the Administrative Agent shall request within five (5) Business Days after such request.
(e) Without limiting the provisions of Section 5.02(n), at all times during the Subject Period, (i) the Parent shall not directly hold cash in excess of a de minimis amount, other than on a temporary or pass-through basis held for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), (ii) the Parent’s direct ownership in the Borrower shall at all times account for at least 95% of Total Asset Value; provided, however, that the Parent may hold assets directly on release of any Subsidiary Guarantor from its obligations under this Agreement if such Subsidiary Guarantor becomes an Excluded Subsidiary of the type described in clause (a) of the definition thereof shall only be permitted if at the time such Guarantor becomes an Excluded Subsidiary of such type (1) no Default or Event of Default shall have occurred and be outstanding, (2) after giving effect to such release and the consummation of the transaction that causes such Person to be an Excluded Subsidiary of such type, the Borrowers are deemed to have made a temporary or pass-through basis new Investment in such Person for not more purposes of Section 6.06 (as if such Person were then newly acquired) and such Investment is permitted pursuant to Section 6.06 (other than one Business Day in accordance Section 6.06(f)) at such time and (3) a Responsible Officer of the Borrower Representative certifies to the Administrative Agent compliance with Sections 5.02(n)(iii)(Apreceding clauses (1) and (B2); provided, further, that no such release shall occur if such Subsidiary Guarantor is an obligor hereunder or is an obligor or continues to be a guarantor in respect of the First Lien Facility, any Incremental Equivalent Debt or any Refinancing Indebtedness in respect of any of the foregoing, or (b) upon the occurrence of the Termination Date; provided that, to the extent any Subsidiary became a Subsidiary Guarantor in order to consummate a merger, consolidation or amalgamation permitted under clause (y) (A) of the proviso to Section 6.07(a)(ii), and any such release under clause (iiia) the Parent hereof shall not incur any direct liabilities in excess constitute an Investment as if such merger, consolidation or amalgamation had been consummated pursuant to clause (y) of the value proviso to Section 6.07(a)(ii)(y) as of its assets the date of such release. In connection with any such release, the Administrative Agent shall promptly execute and deliver to any Subsidiary Guarantor, at such Subsidiary Guarantor’s expense, all documents that are not held such Subsidiary Guarantor shall reasonably request to evidence termination or release. Any execution and delivery of documents pursuant to the preceding sentence of this Section 10.12 shall be without recourse to or warranty by the Borrower Administrative Agent (other than as to the Administrative Agent’s authority to execute and its Subsidiariesdeliver such documents).
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Sources: Second Lien Term Loan Agreement (Allscripts Healthcare Solutions, Inc.)
Release of Subsidiary Guarantors. (a) Within five (5) Business Days following Notwithstanding anything to the written contrary contained herein or in any other Loan Document, upon request of the Borrower in connection with any disposition permitted by the Parent GuarantorLoan Documents, the Administrative AgentAgent shall (without notice to, on behalf or vote or consent of, any Lender) take such actions as shall be required to release any guarantee obligations under any Loan Document of any Subsidiary Guarantor being disposed of in such disposition, to the extent necessary to permit consummation of such disposition in accordance with the Loan Documents.
(b) Notwithstanding anything to the contrary contained herein or any other Loan Document, when the principal and interest with respect to all Loans and all other monetary payment Obligations which are then due and payable have been paid in full, all Revolving Credit Commitments have terminated or expired and no Letter of Credit shall be outstanding, upon request of the LendersBorrower, the Administrative Agent shall (without notice to, or vote or consent of, any Lender) take such actions as shall be required to release all Subsidiary Guarantors from their respective guarantee obligations under this Agreement and each other any Loan Document so long as: of any Subsidiary Guarantor. Any such release of guarantee obligations shall be deemed subject to the provision that such guarantee obligations shall be reinstated if within 180 days after such release (ior such longer period under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect during which any payment in respect of the Guaranteed Obligations guaranteed thereby can be annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid) there is no monetary Event any portion of Default existing under this Agreement at any payment in respect of the time Guaranteed Obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of such request and no Default or Event of Default will exist immediately following such release; (ii) the Borrower or the Parent Guarantor shall have received and have in effect at such time an Investment Grade Rating; and (iii) any Subsidiary Guarantor, or upon or as a Responsible Officer result of the Parent Guarantor shall have delivered to appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent stating that each Borrower or any Subsidiary Guarantor is either being released from or any substantial part of its obligations under any Senior Financing Transaction property, or has otherwise, all as though such payment had not then provided (and is not then required by the terms of such Senior Financing Transaction to provide) a guaranty with respect to any Senior Financing Transaction to which any Loan Party is a party or to which it is simultaneously (or substantially simultaneously) entering intobeen made; provided, however, that in the event the Parent Guarantor is not able to make any such statement with respect to any specific Subsidiary Guarantor, such Subsidiary Guarantor shall not be released from its obligations under this Agreement and each other Loan Document until the Parent Guarantor makes such statement with respect to such Subsidiary Guarantor, but all other Subsidiary Guarantors reinstated guarantee shall be released as provided herein (collectively, clauses (i), (ii) and (iii) shall be considered a “Release Event”). In addition, following a Release Event, a Subsidiary of immediately upon the Parent Guarantor shall not be required to become a Guarantor hereunder unless and until such Subsidiary thereafter becomes a guarantor or borrower Guaranteed Obligations being indefeasibly paid in respect of a Senior Financing Transaction, in which case such Subsidiary shall become a Guarantor in accordance with Section 5.01(j)(v)full.
(b) In addition to the foregoing, at any time prior to the date on which the Borrower or the Parent Guarantor shall have received and then have in effect an Investment Grade Rating, within five (5) Business Days after the written request of the Parent Guarantor (each, an “Early Release Request”), including but not limited to, in connection with the sale or financing of any applicable Unencumbered Asset then being designated as a non-Unencumbered Asset as permitted hereunder or the designation or redesignation of a Restricted Subsidiary as an Unrestricted Subsidiary as permitted hereunder, the Administrative Agent, on behalf of the Lenders, shall release the Subsidiary Guarantors designated in such request from their respective obligations under this Agreement and each other Loan Document so long as: (i) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such release; (ii) immediately following such release the Borrower and the Parent Guarantor shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such release; and (iii) the Parent Guarantor shall have delivered to the Administrative Agent (A) a certificate confirming compliance with (i) and (ii) above and (B) an updated Schedule II listing each Unencumbered Asset as of the date such Subsidiary Guarantor is removed as a Guarantor hereunder.
(c) At the written request of the Parent, the Administrative Agent, on behalf of the Lender Parties, shall be authorized to (i) release the Parent from its payment obligations with respect to the Guaranty or (ii) cap the amount of such obligations in a manner satisfactory to the Administrative Agent (any of the actions described in clauses (i) and (ii), a “Subject Action”), so long as (A)(1) in the case of a release, the Parent is either then being released from its Obligations as an obligor under each Senior Financing Transaction or is not then an obligor (and is not then required by the terms of any Senior Financing Transaction to become an obligor) with respect to any Senior Financing Transaction or (2) in the case of a liability cap, the Obligations of the Parent under each Senior Financing Transaction are subject to a parallel liability cap satisfactory to the Administrative Agent, (B) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such Subject Action; (C) immediately following such Subject Action the Borrower and the Parent shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such Subject Action; (D) the Parent shall have delivered to the Administrative Agent a certificate confirming compliance with clauses (B) and (C) above and (E) during the period commencing on the date on which any Subject Action occurs and ending the date (if any) on which the Parent is reinstated as a Guarantor or the liability cap is lifted, as applicable, in accordance with Section 9.14(d) below (such period being the “Subject Period”), the provisions of Section 9.14(e) below shall apply. For the avoidance of doubt, (i) no Subject Action shall release the Parent from any of its Obligations other than its payment Obligations as a Guarantor (and it is the intent of the parties that the Parent shall continue to be bound by all other covenants, representations and other provisions hereof applicable to it notwithstanding the occurrence of any such Subject Action) and only, in the case of a liability cap, to the extent of such cap (provided, however, that such covenants, representations and other provisions shall be deemed to be revised, mutatis mutandis, to the extent necessary to reflect that the Parent is a Loan Party but not a Guarantor) and (ii) the covenants in Section 5.04 shall continue to be calculated based on the Consolidated Group.
(d) Notwithstanding the foregoing, if at any time following a Subject Action (w) the Parent becomes an obligor in respect of a Senior Financing Transaction, (x) the Parent is no longer subject to a parallel liability cap under any Senior Financing Transaction, (y) the Internal Revenue Service issues guidance clarifying that parent guaranties do not preclude the allocation of related debt in satisfaction of “negative basis” issues or (z) the Parent breaches any provision of Section 9.14(e) below, then, as applicable, the Parent shall be reinstated as a Guarantor hereunder or the liability cap on the Parent’s payment obligations under the Guaranty shall be lifted so that the Obligations of the Parent under the Loan Documents shall be pari passu with the Obligations of the Parent under each Senior Financing Transaction, and the Parent shall execute and deliver such confirmations and ratifications of the Guaranty as the Administrative Agent shall request within five (5) Business Days after such request.
(e) Without limiting the provisions of Section 5.02(n), at all times during the Subject Period, (i) the Parent shall not directly hold cash in excess of a de minimis amount, other than on a temporary or pass-through basis held for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), (ii) the Parent’s direct ownership in the Borrower shall at all times account for at least 95% of Total Asset Value; provided, however, that the Parent may hold assets directly on a temporary or pass-through basis for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), and (iii) the Parent shall not incur any direct liabilities in excess of the value of its assets that are not held by the Borrower and its Subsidiaries
Appears in 1 contract
Release of Subsidiary Guarantors. A Subsidiary Guarantor shall be automatically released from this Guaranty, and any Liens granted by such Subsidiary Guarantor in respect of the Obligations shall be automatically released, if: (a) Within five (5) Business Days following the written request by the Parent Guarantor, the Administrative Agent, on behalf of the Lenders, shall release all Subsidiary Guarantors from their respective obligations under this Agreement and each other Loan Document so long as: (i) there such Subsidiary Guarantor is no monetary Event not a Wholly-Owned Subsidiary or ceases to be a Wholly-Owned Subsidiary of Default existing under the Parent Guarantor in a transaction not prohibited by this Agreement at the time of such request and no Default or Event of Default will exist immediately following such release; (ii) the Borrower or otherwise requests such release and, in the Parent Guarantor shall have received and have in effect at such time an Investment Grade Rating; case of each of clauses (a)(i) and (iii) a Responsible Officer of the Parent Guarantor shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent stating that each Subsidiary Guarantor is either being released from its obligations under any Senior Financing Transaction or has not then provided (and is not then required by the terms of such Senior Financing Transaction to provide) a guaranty with respect a)(ii), after giving effect to any Senior Financing Transaction to which any Loan Party is a party or to which it is simultaneously (or substantially simultaneously) entering into; provided, however, that in the event the Parent Guarantor is not able to make such statement with respect to any specific Subsidiary Guarantorrelease, such Subsidiary Guarantor shall not be released from its obligations under this Agreement and each other Loan Document until the Parent Guarantor makes such statement with respect to such Subsidiary Guarantora borrower or a guarantor, but all other Subsidiary Guarantors shall be released as provided herein (collectivelyor otherwise have a payment obligation, clauses (i), (ii) and (iii) shall be considered a “Release Event”). In addition, following a Release Event, a Subsidiary of the Parent Guarantor shall not be required to become a Guarantor hereunder unless and until such Subsidiary thereafter becomes a guarantor or borrower in respect of a Senior Financing Transaction, in which case such Subsidiary shall become a Guarantor in accordance with Section 5.01(j)(v).
any Enterprise Unsecured Debt and (b) In addition to the foregoing, at any time prior to the date on which the Borrower or the Parent Guarantor Administrative Agent shall have received and then have in effect an Investment Grade Rating, within five (5) Business Days after the written request a certificate of the Parent Guarantor (eachBorrower signed by a Responsible Officer certifying that, an “Early Release Request”), including but not limited to, in connection with the sale or financing of any applicable Unencumbered Asset then being designated as a non-Unencumbered Asset as permitted hereunder or the designation or redesignation of a Restricted Subsidiary as an Unrestricted Subsidiary as permitted hereunder, the Administrative Agent, on behalf of the Lendersdate of such release, shall release (x) the Subsidiary Guarantors designated matters set forth in such request from their respective obligations under this Agreement and each other Loan Document so long as: clause (a) (i) there is no monetary Event of Default existing under this Agreement at the time of such request or (a)(ii), as applicable, are true and correct, (y) no Default or Event of Default will shall then exist immediately following or would occur as a result of such release; (ii) immediately following such release the Borrower and the Parent Guarantor shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such release; releases and (iiiz) the Parent Guarantor shall have delivered to representations and warranties contained in Article V and in the Administrative Agent other Loan Documents are true and correct in all material respects (A) a certificate confirming compliance with (i) and (ii) above and (B) an updated Schedule II listing each Unencumbered Asset as of the date such Subsidiary Guarantor is removed as a Guarantor hereunder.
(c) At the written request of the Parent, the Administrative Agent, on behalf of the Lender Parties, shall be authorized to (i) release the Parent from its payment obligations with respect to the Guaranty or (ii) cap the amount of such obligations in a manner satisfactory to the Administrative Agent (any of the actions described in clauses (i) and (ii), a “Subject Action”), so long as (A)(1) except in the case of a releaserepresentation 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 Parent is either then being released from its Obligations date of release of such Subsidiary Guarantor (other than the representations and warranties in Section 5.05(c) and Section 5.22, which shall be made only as of the Second Amendment Effective Date), except to the extent that such representations and warranties specifically refer to an obligor under each Senior Financing Transaction or is not then an obligor earlier date, in which case they were true and correct in all material respects (and is not then required by the terms of any Senior Financing Transaction to become an obligor) with respect to any Senior Financing Transaction or (2) except in the case of a liability caprepresentation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall have been true and correct in all respects) as of such earlier date, and except that for purposes of this Section 12.10, the Obligations of the Parent under each Senior Financing Transaction are subject to a parallel liability cap satisfactory to the Administrative Agent, representations and warranties contained in subsections (B) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such Subject Action; (C) immediately following such Subject Action the Borrower and the Parent shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such Subject Action; (D) the Parent shall have delivered to the Administrative Agent a certificate confirming compliance with clauses (Ba) and (Cb) above and (E) during the period commencing on the date on which any Subject Action occurs and ending the date (if any) on which the Parent is reinstated as a Guarantor or the liability cap is lifted, as applicable, in accordance with Section 9.14(d) below (such period being the “Subject Period”), the provisions of Section 9.14(e) below shall apply. For the avoidance of doubt, (i) no Subject Action shall release the Parent from any of its Obligations other than its payment Obligations as a Guarantor (and it is the intent of the parties that the Parent shall continue to be bound by all other covenants, representations and other provisions hereof applicable to it notwithstanding the occurrence of any such Subject Action) and only, in the case of a liability cap, to the extent of such cap (provided, however, that such covenants, representations and other provisions 5.05 shall be deemed to be revised, mutatis mutandis, refer to the extent necessary most recent statements furnished pursuant to reflect that the Parent is a Loan Party but not a Guarantorsubsections (a) and (ii) the covenants in Section 5.04 shall continue to be calculated based on the Consolidated Group.b), respectively, of Section
(d) Notwithstanding the foregoing, if at any time following a Subject Action (w) the Parent becomes an obligor in respect of a Senior Financing Transaction, (x) the Parent is no longer subject to a parallel liability cap under any Senior Financing Transaction, (y) the Internal Revenue Service issues guidance clarifying that parent guaranties do not preclude the allocation of related debt in satisfaction of “negative basis” issues or (z) the Parent breaches any provision of Section 9.14(e) below, then, as applicable, the Parent shall be reinstated as a Guarantor hereunder or the liability cap on the Parent’s payment obligations under the Guaranty shall be lifted so that the Obligations of the Parent under the Loan Documents shall be pari passu with the Obligations of the Parent under each Senior Financing Transaction, and the Parent shall execute and deliver such confirmations and ratifications of the Guaranty as the 6.01. The Administrative Agent shall agrees to furnish to the Borrower, promptly after the Borrower’s request within five (5) Business Days after such request.
(e) Without limiting and at the provisions of Section 5.02(n)Borrower’s sole cost and expense, at all times during any release, termination, or other agreement or document as is reasonably necessary or advisable to evidence the Subject Period, (i) the Parent shall not directly hold cash in excess of a de minimis amount, other than on a temporary foregoing release or pass-through basis held for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), (ii) the Parent’s direct ownership in the Borrower shall at all times account for at least 95% of Total Asset Value; provided, however, that the Parent as may hold assets directly on a temporary or pass-through basis for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), and (iii) the Parent shall not incur any direct liabilities in excess of the value of its assets that are not held be reasonably requested by the Borrower Borrower. 111 EXHIBIT A-2 Clean Amended Credit Agreement ON FILE WITH THE COMPANY EXHIBIT B Schedule 2.01 (Commitments and its SubsidiariesApplicable Percentages) See attached.
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Release of Subsidiary Guarantors. A Subsidiary Guarantor shall be automatically released from this Guaranty, and any Liens granted by such Subsidiary Guarantor in respect of the Obligations shall be automatically released, if: (a) Within five (5) Business Days following the written request by the Parent Guarantor, the Administrative Agent, on behalf of the Lenders, shall release all Subsidiary Guarantors from their respective obligations under this Agreement and each other Loan Document so long as: (i) there such Subsidiary Guarantor is no monetary Event not a Wholly-Owned Subsidiary or ceases to be a Wholly-Owned Subsidiary of Default existing under the Parent Guarantor in a transaction not prohibited by this Agreement at the time of such request and no Default or Event of Default will exist immediately following such release; (ii) the Borrower or otherwise requests such release and, in the Parent Guarantor shall have received and have in effect at such time an Investment Grade Rating; case of each of clauses (a)(i) and (iii) a Responsible Officer of the Parent Guarantor shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent stating that each Subsidiary Guarantor is either being released from its obligations under any Senior Financing Transaction or has not then provided (and is not then required by the terms of such Senior Financing Transaction to provide) a guaranty with respect a)(ii), after giving effect to any Senior Financing Transaction to which any Loan Party is a party or to which it is simultaneously (or substantially simultaneously) entering into; provided, however, that in the event the Parent Guarantor is not able to make such statement with respect to any specific Subsidiary Guarantorrelease, such Subsidiary Guarantor shall not be released from its obligations under this Agreement and each other Loan Document until the Parent Guarantor makes such statement with respect to such Subsidiary Guarantora borrower or a guarantor, but all other Subsidiary Guarantors shall be released as provided herein (collectivelyor otherwise have a payment obligation, clauses (i), (ii) and (iii) shall be considered a “Release Event”). In addition, following a Release Event, a Subsidiary of the Parent Guarantor shall not be required to become a Guarantor hereunder unless and until such Subsidiary thereafter becomes a guarantor or borrower in respect of a Senior Financing Transaction, in which case such Subsidiary shall become a Guarantor in accordance with Section 5.01(j)(v).
any Enterprise Unsecured Debt and (b) In addition to the foregoing, at any time prior to the date on which the Borrower or the Parent Guarantor Administrative Agent shall have received and then have in effect an Investment Grade Rating, within five (5) Business Days after the written request a certificate of the Parent Guarantor Borrower signed by a Responsible Officer certifying that, as of the date of such release, (each, an “Early Release Request”x) the matters set forth in clause (a)(i) or (a)(ii), including but not limited toas applicable, in connection with the sale or financing of any applicable Unencumbered Asset then being designated as a non-Unencumbered Asset as permitted hereunder or the designation or redesignation of a Restricted Subsidiary as an Unrestricted Subsidiary as permitted hereunderare true and correct, the Administrative Agent, on behalf of the Lenders, shall release the Subsidiary Guarantors designated in such request from their respective obligations under this Agreement and each other Loan Document so long as: (iy) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will shall then exist immediately following or would occur as a result of such release; (ii) immediately following such release the Borrower and the Parent Guarantor shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such release; releases and (iiiz) the Parent Guarantor shall have delivered to representations and warranties contained in Article V and in the Administrative Agent other Loan Documents are true and correct in all material respects (A) a certificate confirming compliance with (i) and (ii) above and (B) an updated Schedule II listing each Unencumbered Asset as of the date such Subsidiary Guarantor is removed as a Guarantor hereunder.
(c) At the written request of the Parent, the Administrative Agent, on behalf of the Lender Parties, shall be authorized to (i) release the Parent from its payment obligations with respect to the Guaranty or (ii) cap the amount of such obligations in a manner satisfactory to the Administrative Agent (any of the actions described in clauses (i) and (ii), a “Subject Action”), so long as (A)(1) except in the case of a releaserepresentation 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 Parent is either then being released from its Obligations date of release of such Subsidiary Guarantor (other than such representations and warranties which are expressly made only as of the Closing Date, including but not limited to those set forth in Section 5.05(c) and Section 5.22), except to the extent that such representations and warranties specifically refer to an obligor under each Senior Financing Transaction or is not then an obligor earlier date, in which case they were true and correct in all material respects (and is not then required by the terms of any Senior Financing Transaction to become an obligor) with respect to any Senior Financing Transaction or (2) except in the case of a liability caprepresentation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall have been true and correct in all respects) as of such earlier date, and except that for purposes of this Section 12.10, the Obligations of the Parent under each Senior Financing Transaction are subject to a parallel liability cap satisfactory to the Administrative Agent, representations and warranties contained in subsections (B) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such Subject Action; (C) immediately following such Subject Action the Borrower and the Parent shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such Subject Action; (D) the Parent shall have delivered to the Administrative Agent a certificate confirming compliance with clauses (Ba) and (Cb) above and (E) during the period commencing on the date on which any Subject Action occurs and ending the date (if any) on which the Parent is reinstated as a Guarantor or the liability cap is lifted, as applicable, in accordance with Section 9.14(d) below (such period being the “Subject Period”), the provisions of Section 9.14(e) below shall apply. For the avoidance of doubt, (i) no Subject Action shall release the Parent from any of its Obligations other than its payment Obligations as a Guarantor (and it is the intent of the parties that the Parent shall continue to be bound by all other covenants, representations and other provisions hereof applicable to it notwithstanding the occurrence of any such Subject Action) and only, in the case of a liability cap, to the extent of such cap (provided, however, that such covenants, representations and other provisions 5.05 shall be deemed to be revised, mutatis mutandis, refer to the extent necessary most recent statements furnished pursuant to reflect that the Parent is a Loan Party but not a Guarantorsubsections (a) and (ii) b), respectively, of Section 6.01. The Administrative Agent agrees to furnish to the covenants in Section 5.04 shall continue Borrower, promptly after the Borrower’s request and at the Borrower’s sole cost and expense, any release, termination, or other agreement or document as is reasonably necessary or advisable to evidence the foregoing release or as may be reasonably requested by the Borrower. Each of the parties hereto have caused a counterpart of this Agreement to be calculated based on duly executed as of the Consolidated Group.
(d) Notwithstanding the foregoing, if at any time following a Subject Action (w) date first above written. as the Parent becomes an obligor in respect of Guarantor By: /s/ P▇▇▇▇ ▇. ▇▇▇▇▇ Name: P▇▇▇▇ ▇. ▇▇▇▇▇ Title: Chief Financial Officer as the Borrower By: HEALTHPEAK PROPERTIES, INC. Its: Managing Member By: /s/ P▇▇▇▇ ▇. ▇▇▇▇▇ Name: P▇▇▇▇ ▇. ▇▇▇▇▇ Title: Chief Financial Officer as a Senior Financing TransactionSubsidiary Guarantor By: HEALTHPEAK OP, (x) the Parent is no longer subject to LLC Its: Sole Member By: HEALTHPEAK PROPERTIES, INC. Its: Managing Member By: /s/ P▇▇▇▇ ▇. ▇▇▇▇▇ Name: P▇▇▇▇ ▇. ▇▇▇▇▇ Title: Chief Financial Officer as a parallel liability cap under any Senior Financing TransactionSubsidiary Guarantor By: DOC DR H▇▇▇▇▇, (y) the Internal Revenue Service issues guidance clarifying that parent guaranties do not preclude the allocation of related debt in satisfaction of “negative basis” issues or (z) the Parent breaches any provision of Section 9.14(e) belowLLC, thenIts: Managing Member By: HEALTHPEAK OP, LLC, Its: Sole Member By: HEALTHPEAK PROPERTIES, INC. Its: Managing Member By: /s/ P▇▇▇▇ ▇. ▇▇▇▇▇ Name: P▇▇▇▇ ▇. ▇▇▇▇▇ Title: Chief Financial Officer BANK OF AMERICA, N.A., as applicableAdministrative Agent By: /s/ L▇▇▇▇▇▇ ▇▇▇▇▇ Name: L▇▇▇▇▇▇ ▇▇▇▇▇ Title: Vice President BANK OF AMERICA, the Parent shall be reinstated N.A., as a Guarantor hereunder or the liability cap on the Parent’s payment obligations under the Guaranty shall be lifted so that the Obligations of the Parent under the Loan Documents shall be pari passu with the Obligations of the Parent under each Senior Financing TransactionLender and L/C Issuer By: Name: Title: BANK OF AMERICA, and the Parent shall execute and deliver such confirmations and ratifications of the Guaranty N.A., as the Administrative Agent shall request within five (5) Business Days after such request.
(e) Without limiting the provisions of Section 5.02(n)By: Name: Title: BANK OF AMERICA, at all times during the Subject PeriodN.A., (i) the Parent shall not directly hold cash in excess of as a de minimis amount, other than on a temporary or pass-through basis held for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) Lender and (B), (ii) the Parent’s direct ownership in the Borrower shall at all times account for at least 95% of Total Asset Value; provided, however, that the Parent may hold assets directly on a temporary or pass-through basis for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), and (iii) the Parent shall not incur any direct liabilities in excess of the value of its assets that are not held by the Borrower and its SubsidiariesL/C Issuer By: /s/ D▇▇▇▇▇ ▇▇▇▇▇▇ Name: D▇▇▇▇▇ ▇▇▇▇▇▇ Title: Director
Appears in 1 contract
Release of Subsidiary Guarantors. A Subsidiary Guarantor shall be automatically released from this Guaranty, and any Liens granted by such Subsidiary Guarantor in respect of the Obligations shall be automatically released, if: (a) Within five (5) Business Days following the written request by the Parent Guarantor, the Administrative Agent, on behalf of the Lenders, shall release all Subsidiary Guarantors from their respective obligations under this Agreement and each other Loan Document so long as: (i) there such Subsidiary Guarantor is no monetary Event not a Wholly-Owned Subsidiary or ceases to be a Wholly-Owned Subsidiary of Default existing under the Parent Guarantor in a transaction not prohibited by this Agreement at the time of such request and no Default or Event of Default will exist immediately following such release; (ii) the Borrower or otherwise requests such release and, in the Parent Guarantor shall have received and have in effect at such time an Investment Grade Rating; case of each of clauses (a)(i) and (iii) a Responsible Officer of the Parent Guarantor shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent stating that each Subsidiary Guarantor is either being released from its obligations under any Senior Financing Transaction or has not then provided (and is not then required by the terms of such Senior Financing Transaction to provide) a guaranty with respect a)(ii), after giving effect to any Senior Financing Transaction to which any Loan Party is a party or to which it is simultaneously (or substantially simultaneously) entering into; provided, however, that in the event the Parent Guarantor is not able to make such statement with respect to any specific Subsidiary Guarantorrelease, such Subsidiary Guarantor shall not be released from its obligations under this Agreement and each other Loan Document until the Parent Guarantor makes such statement with respect to such Subsidiary Guarantora borrower or a guarantor, but all other Subsidiary Guarantors shall be released as provided herein (collectivelyor otherwise have a payment obligation, clauses (i), (ii) and (iii) shall be considered a “Release Event”). In addition, following a Release Event, a Subsidiary of the Parent Guarantor shall not be required to become a Guarantor hereunder unless and until such Subsidiary thereafter becomes a guarantor or borrower in respect of a Senior Financing Transaction, in which case such Subsidiary shall become a Guarantor in accordance with Section 5.01(j)(v).
any Enterprise Unsecured Debt and (b) In addition to the foregoing, at any time prior to the date on which the Borrower or the Parent Guarantor Administrative Agent shall have received and then have in effect an Investment Grade Rating, within five (5) Business Days after the written request a certificate of the Parent Guarantor Borrower signed by a Responsible Officer certifying that, as of the date of such release, (each, an “Early Release Request”x) the matters set forth in clause (a)(i) or (a)(ii), including but not limited toas applicable, in connection with the sale or financing of any applicable Unencumbered Asset then being designated as a non-Unencumbered Asset as permitted hereunder or the designation or redesignation of a Restricted Subsidiary as an Unrestricted Subsidiary as permitted hereunderare true and correct, the Administrative Agent, on behalf of the Lenders, shall release the Subsidiary Guarantors designated in such request from their respective obligations under this Agreement and each other Loan Document so long as: (iy) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will shall then exist immediately following or would occur as a result of such release; (ii) immediately following such release the Borrower and the Parent Guarantor shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such release; releases and (iiiz) the Parent Guarantor shall have delivered to representations and warranties contained in Article V and in the Administrative Agent other Loan Documents are true and correct in all material respects (A) a certificate confirming compliance with (i) and (ii) above and (B) an updated Schedule II listing each Unencumbered Asset as of the date such Subsidiary Guarantor is removed as a Guarantor hereunder.
(c) At the written request of the Parent, the Administrative Agent, on behalf of the Lender Parties, shall be authorized to (i) release the Parent from its payment obligations with respect to the Guaranty or (ii) cap the amount of such obligations in a manner satisfactory to the Administrative Agent (any of the actions described in clauses (i) and (ii), a “Subject Action”), so long as (A)(1) except in the case of a releaserepresentation 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 Parent is either then being released from its Obligations date of release of such Subsidiary Guarantor (other than thesuch representations and warranties which are expressly made only as of as of the Closing Date or the Third Amendment Effective Date, as applicable, including but not limited to those set forth in Section 5.05(c) and Section 5.22, which shall be made only as of the Second Amendment Effective Date), except to the extent that such representations and warranties specifically refer to an obligor under each Senior Financing Transaction or is not then an obligor earlier date, in which case they were true and correct in all material respects (and is not then required by the terms of any Senior Financing Transaction to become an obligor) with respect to any Senior Financing Transaction or (2) except in the case of a liability caprepresentation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall have been true and correct in all respects) as of such earlier date, and except that for purposes of this Section 12.10, the Obligations of the Parent under each Senior Financing Transaction are subject to a parallel liability cap satisfactory to the Administrative Agent, representations and warranties contained in subsections (B) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such Subject Action; (C) immediately following such Subject Action the Borrower and the Parent shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such Subject Action; (D) the Parent shall have delivered to the Administrative Agent a certificate confirming compliance with clauses (Ba) and (Cb) above and (E) during the period commencing on the date on which any Subject Action occurs and ending the date (if any) on which the Parent is reinstated as a Guarantor or the liability cap is lifted, as applicable, in accordance with Section 9.14(d) below (such period being the “Subject Period”), the provisions of Section 9.14(e) below shall apply. For the avoidance of doubt, (i) no Subject Action shall release the Parent from any of its Obligations other than its payment Obligations as a Guarantor (and it is the intent of the parties that the Parent shall continue to be bound by all other covenants, representations and other provisions hereof applicable to it notwithstanding the occurrence of any such Subject Action) and only, in the case of a liability cap, to the extent of such cap (provided, however, that such covenants, representations and other provisions 5.05 shall be deemed to be revised, mutatis mutandis, refer to the extent necessary most recent statements furnished pursuant to reflect that the Parent is a Loan Party but not a Guarantorsubsections (a) and (ii) the covenants in Section 5.04 shall continue to be calculated based on the Consolidated Group.
(d) Notwithstanding the foregoingb), if at any time following a Subject Action (w) the Parent becomes an obligor in respect of a Senior Financing Transactionrespectively, (x) the Parent is no longer subject to a parallel liability cap under any Senior Financing Transaction, (y) the Internal Revenue Service issues guidance clarifying that parent guaranties do not preclude the allocation of related debt in satisfaction of “negative basis” issues or (z) the Parent breaches any provision of Section 9.14(e) below, then, as applicable, the Parent shall be reinstated as a Guarantor hereunder or the liability cap on the Parent’s payment obligations under the Guaranty shall be lifted so that the Obligations of the Parent under the Loan Documents shall be pari passu with the Obligations of the Parent under each Senior Financing Transaction, and the Parent shall execute and deliver such confirmations and ratifications of the Guaranty as the 6.01. The Administrative Agent shall agrees to furnish to the Borrower, promptly after the Borrower’s request within five (5) Business Days after such request.
(e) Without limiting and at the provisions of Section 5.02(n)Borrower’s sole cost and expense, at all times during any release, termination, or other agreement or document as is reasonably necessary or advisable to evidence the Subject Period, (i) the Parent shall not directly hold cash in excess of a de minimis amount, other than on a temporary foregoing release or pass-through basis held for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), (ii) the Parent’s direct ownership in the Borrower shall at all times account for at least 95% of Total Asset Value; provided, however, that the Parent as may hold assets directly on a temporary or pass-through basis for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), and (iii) the Parent shall not incur any direct liabilities in excess of the value of its assets that are not held be reasonably requested by the Borrower and its SubsidiariesBorrower.
Appears in 1 contract
Release of Subsidiary Guarantors. (a) Within five (5) Business Days following The Company may request in writing that the written request by holders of the Parent Notes release a Subsidiary Guarantor, the Administrative Agent, on behalf of the Lenders, shall release all Subsidiary Guarantors from their respective obligations under this Agreement and each other Loan Document so long as: if (i) there is upon its release as a Subsidiary Guarantor, such entity will no monetary Event of Default existing under this Agreement at the time of such request and longer own a Qualifying Unencumbered Project, or if it will continue to own a Qualifying Unencumbered Project, it will not have outstanding any Recourse Indebtedness, (ii) no Default or Event of Default will exist immediately following shall then be in existence or would occur as a result of such release; (ii) the Borrower or the Parent Guarantor shall have received and have in effect at such time an Investment Grade Rating; and , (iii) a Responsible Officer of the Parent Guarantor shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent stating that each Subsidiary Guarantor is either being released from its obligations under any Senior Financing Transaction or has not then provided (and is not then required by the terms of such Senior Financing Transaction to provide) a guaranty with respect to any Senior Financing Transaction to which any Loan Party is a party or to which it is simultaneously (or substantially simultaneously) entering into; provided, however, that in the event the Parent Guarantor is not able to make such statement with respect to any specific Subsidiary Guarantor, such Subsidiary Guarantor shall not have been released, or shall simultaneously be released released, as a guarantor under the Bank Credit Agreement and (iv) if any fee or other form of consideration is paid for the purpose of releasing such Subsidiary Guarantor from its obligations under this Agreement and each other Loan Document until the Parent Guarantor makes such statement with respect to the Bank Credit Agreement, then the holders of the Notes shall receive equivalent consideration. Together with any such Subsidiary Guarantorrequest, but all other Subsidiary Guarantors the Company shall be released as provided herein (collectively, deliver to the holders of the Notes an Officer's Certificate certifying that the conditions set forth in immediately preceding clauses (i), (ii), (iii) and (iiiiv) shall will be considered a “Release Event”)true and correct upon the release of such Subsidiary Guarantor. In addition, No later than 10 Business Days following a Release Event, a Subsidiary the receipt by the holders of the Parent Guarantor shall not be required to become a Guarantor hereunder unless and until Notes of such Subsidiary thereafter becomes a guarantor or borrower in respect of a Senior Financing Transaction, in which case such Subsidiary shall become a Guarantor in accordance with Section 5.01(j)(v).
(b) In addition to the foregoing, at any time prior to the date on which the Borrower or the Parent Guarantor shall have received and then have in effect an Investment Grade Rating, within five (5) Business Days after the written request of and the Parent Guarantor (each, an “Early Release Request”), including but not limited to, in connection with the sale or financing of any applicable Unencumbered Asset then being designated as a non-Unencumbered Asset as permitted hereunder or the designation or redesignation of a Restricted Subsidiary as an Unrestricted Subsidiary as permitted hereunder, the Administrative Agent, on behalf of the Lenders, shall release the Subsidiary Guarantors designated in such request from their respective obligations under this Agreement related Officer's Certificate and each other Loan Document so long as: (i) there is no monetary Event of Default existing under this Agreement at as the time of such request and no Default or Event of Default will exist conditions set forth in immediately following such release; (ii) immediately following such release the Borrower and the Parent Guarantor shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such release; and (iii) the Parent Guarantor shall have delivered to the Administrative Agent (A) a certificate confirming compliance with (i) and (ii) above and (B) an updated Schedule II listing each Unencumbered Asset as of the date such Subsidiary Guarantor is removed as a Guarantor hereunder.
(c) At the written request of the Parent, the Administrative Agent, on behalf of the Lender Parties, shall be authorized to (i) release the Parent from its payment obligations with respect to the Guaranty or (ii) cap the amount of such obligations in a manner satisfactory to the Administrative Agent (any of the actions described in preceding clauses (i) and ), (ii), a “Subject Action”), so long as (A)(1) in the case of a release, the Parent is either then being released from its Obligations as an obligor under each Senior Financing Transaction or is not then an obligor (and is not then required by the terms of any Senior Financing Transaction to become an obligor) with respect to any Senior Financing Transaction or (2) in the case of a liability cap, the Obligations of the Parent under each Senior Financing Transaction are subject to a parallel liability cap satisfactory to the Administrative Agent, (B) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such Subject Action; (C) immediately following such Subject Action the Borrower and the Parent shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such Subject Action; (D) the Parent shall have delivered to the Administrative Agent a certificate confirming compliance with clauses (Biii) and (Civ) above will be true and (E) during the period commencing on the date on which any Subject Action occurs and ending the date (if any) on which the Parent is reinstated as a Guarantor or the liability cap is lifted, as applicable, in accordance with Section 9.14(d) below (such period being the “Subject Period”)correct, the provisions of Section 9.14(e) below shall apply. For the avoidance of doubt, (i) no Subject Action shall release the Parent from any of its Obligations other than its payment Obligations as a Guarantor (and it is the intent of the parties that the Parent shall continue to be bound by all other covenants, representations and other provisions hereof applicable to it notwithstanding the occurrence of any such Subject Action) and only, in the case of a liability cap, to the extent of such cap (provided, however, that such covenants, representations and other provisions shall be deemed to be revised, mutatis mutandis, to the extent necessary to reflect that the Parent is a Loan Party but not a Guarantor) effective automatically and (ii) the covenants in Section 5.04 shall continue to be calculated based on the Consolidated Group.
(d) Notwithstanding the foregoing, if at any time following a Subject Action (w) the Parent becomes an obligor in respect each holder of a Senior Financing Transaction, (x) the Parent is no longer subject to a parallel liability cap under any Senior Financing Transaction, (y) the Internal Revenue Service issues guidance clarifying that parent guaranties do not preclude the allocation of related debt in satisfaction of “negative basis” issues or (z) the Parent breaches any provision of Section 9.14(e) below, then, as applicable, the Parent shall be reinstated as a Guarantor hereunder or the liability cap on the Parent’s payment obligations under the Guaranty shall be lifted so that the Obligations of the Parent under the Loan Documents shall be pari passu with the Obligations of the Parent under each Senior Financing Transaction, and the Parent Notes shall execute and deliver such confirmations deliver, at the sole cost and ratifications expense of the Guaranty Company, such documents as the Administrative Agent shall Company may reasonably request within five (5) Business Days after to evidence such request.
(e) Without limiting the provisions release. For purposes of this Section 5.02(n9.7(c), at all times during “equivalent consideration” means an amount equal to the Subject Periodpercentage determined by dividing the fee paid under the Bank Credit Agreement by the principal outstanding amount under the Bank Credit Agreement, (i) multiplied by the Parent shall not directly hold cash in excess of a de minimis amount, other than on a temporary or pass-through basis held for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), (ii) the Parent’s direct ownership in the Borrower shall at all times account for at least 95% of Total Asset Value; provided, however, that the Parent may hold assets directly on a temporary or pass-through basis for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), and (iii) the Parent shall not incur any direct liabilities in excess aggregate outstanding principal amount of the value of its assets that are not held by the Borrower and its SubsidiariesNotes.
Appears in 1 contract
Sources: Note Purchase Agreement (Associated Estates Realty Corp)
Release of Subsidiary Guarantors. (a) Within five In the event that (5i) Business Days following all of the written request capital stock or other Equity Interests of any Subsidiary Guarantor is sold or otherwise disposed of in a transaction permitted by Section 7.05(d) (except to the Parent Guarantorextent that such sale or disposition is to a Borrower or any other Loan Party) or (ii) a Subsidiary Guarantor will no longer be a borrower or guarantor of, or otherwise have payment obligations in respect of, any Indebtedness of the type described in clause (a) of such definition that is not (x) owing to any of the Consolidated Businesses or (y) Secured Indebtedness (including, without limitation and for the avoidance of doubt, Indebtedness (other than Secured Indebtedness) that is incurred under or in connection with notes or bonds issued in a Rule 144A Transaction), then such Subsidiary Guarantor shall be released from its obligations under this Guaranty and the other Loan Documents; provided, that the Company shall have delivered to the Administrative Agent, on behalf at least two Business Days prior to the date of the Lendersproposed release (or such shorter period of time as agreed to by the Administrative Agent in writing), a written request for release (a “Guarantor Release Notice”), together with an Officer’s Certificate certifying that (x) in the case of clause (i) above, such sale or disposition is as a result of a transaction permitted under this Agreement and (y) in the case of clause (ii) above, as of the effective date of such release (as set forth in the Guarantor Release Notice) such Subsidiary Guarantor will not be a borrower or guarantor of, or otherwise have payment obligations in respect of, any Indebtedness of the type described in clause (a) of such definition that is not (A) owing to any of the Consolidated Businesses or (B) Secured Indebtedness (including, without limitation and for the avoidance of doubt, Indebtedness (other than Secured Indebtedness) 63861415 that is incurred under or in connection with notes or bonds issued in a Rule 144A Transaction). The Administrative Agent will (at the sole cost of the Company) following receipt of such Guarantor Release Notice and Officer’s Certificate, and each of the Lenders and the L/C Issuers irrevocably authorizes the Administrative Agent to, execute and deliver such documents as the Company or such Subsidiary Guarantor may reasonably request to evidence the release of such Subsidiary Guarantor from its obligations hereunder and under the other Loan Documents, which documents shall be reasonably satisfactory to the Administrative Agent.
(b) The Administrative Agent shall promptly notify the Lenders of any such release all Subsidiary Guarantors from their respective obligations under hereunder, and this Agreement and each other Loan Document so long as: (i) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such release; (ii) the Borrower or the Parent Guarantor shall have received and have in effect at such time an Investment Grade Rating; and (iii) a Responsible Officer of the Parent Guarantor shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent stating that each Subsidiary Guarantor is either being released from its obligations under any Senior Financing Transaction or has not then provided (and is not then required by the terms of such Senior Financing Transaction to provide) a guaranty with respect to any Senior Financing Transaction to which any Loan Party is a party or to which it is simultaneously (or substantially simultaneously) entering into; provided, however, that in the event the Parent Guarantor is not able to make such statement with respect to any specific Subsidiary Guarantor, such Subsidiary Guarantor shall not be released from its obligations under this Agreement and each other Loan Document until the Parent Guarantor makes such statement with respect to such Subsidiary Guarantor, but all other Subsidiary Guarantors shall be released as provided herein (collectively, clauses (i), (ii) and (iii) shall be considered a “Release Event”). In addition, following a Release Event, a Subsidiary of the Parent Guarantor shall not be required to become a Guarantor hereunder unless and until such Subsidiary thereafter becomes a guarantor or borrower in respect of a Senior Financing Transaction, in which case such Subsidiary shall become a Guarantor in accordance with Section 5.01(j)(v).
(b) In addition to the foregoing, at any time prior to the date on which the Borrower or the Parent Guarantor shall have received and then have in effect an Investment Grade Rating, within five (5) Business Days after the written request of the Parent Guarantor (each, an “Early Release Request”), including but not limited to, in connection with the sale or financing of any applicable Unencumbered Asset then being designated as a non-Unencumbered Asset as permitted hereunder or the designation or redesignation of a Restricted Subsidiary as an Unrestricted Subsidiary as permitted hereunder, the Administrative Agent, on behalf of the Lenders, shall release the Subsidiary Guarantors designated in such request from their respective obligations under this Agreement and each other Loan Document so long as: (i) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such release; (ii) immediately following such release the Borrower and the Parent Guarantor shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such release; and (iii) the Parent Guarantor shall have delivered to the Administrative Agent (A) a certificate confirming compliance with (i) and (ii) above and (B) an updated Schedule II listing each Unencumbered Asset as of the date such Subsidiary Guarantor is removed as a Guarantor hereunder.
(c) At the written request of the Parent, the Administrative Agent, on behalf of the Lender Parties, shall be authorized to (i) release the Parent from its payment obligations with respect to the Guaranty or (ii) cap the amount of such obligations in a manner satisfactory to the Administrative Agent (any of the actions described in clauses (i) and (ii), a “Subject Action”), so long as (A)(1) in the case of a release, the Parent is either then being released from its Obligations as an obligor under each Senior Financing Transaction or is not then an obligor (and is not then required by the terms of any Senior Financing Transaction to become an obligor) with respect to any Senior Financing Transaction or (2) in the case of a liability cap, the Obligations of the Parent under each Senior Financing Transaction are subject to a parallel liability cap satisfactory to the Administrative Agent, (B) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such Subject Action; (C) immediately following such Subject Action the Borrower and the Parent shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such Subject Action; (D) the Parent shall have delivered to the Administrative Agent a certificate confirming compliance with clauses (B) and (C) above and (E) during the period commencing on the date on which any Subject Action occurs and ending the date (if any) on which the Parent is reinstated as a Guarantor or the liability cap is lifted, as applicable, in accordance with Section 9.14(d) below (such period being the “Subject Period”), the provisions of Section 9.14(e) below shall apply. For the avoidance of doubt, (i) no Subject Action shall release the Parent from any of its Obligations other than its payment Obligations as a Guarantor (and it is the intent of the parties that the Parent shall continue to be bound by all other covenants, representations and other provisions hereof applicable to it notwithstanding the occurrence of any such Subject Action) and only, in the case of a liability cap, to the extent of such cap (provided, however, that such covenants, representations and other provisions shall be deemed amended to be revised, mutatis mutandis, delete the name of any Subsidiary Guarantor released pursuant to the extent necessary to reflect that the Parent is a Loan Party but not a Guarantor) and (ii) the covenants in Section 5.04 shall continue to be calculated based on the Consolidated Group10.10(a).
(d) Notwithstanding the foregoing, if at any time following a Subject Action (w) the Parent becomes an obligor in respect of a Senior Financing Transaction, (x) the Parent is no longer subject to a parallel liability cap under any Senior Financing Transaction, (y) the Internal Revenue Service issues guidance clarifying that parent guaranties do not preclude the allocation of related debt in satisfaction of “negative basis” issues or (z) the Parent breaches any provision of Section 9.14(e) below, then, as applicable, the Parent shall be reinstated as a Guarantor hereunder or the liability cap on the Parent’s payment obligations under the Guaranty shall be lifted so that the Obligations of the Parent under the Loan Documents shall be pari passu with the Obligations of the Parent under each Senior Financing Transaction, and the Parent shall execute and deliver such confirmations and ratifications of the Guaranty as the Administrative Agent shall request within five (5) Business Days after such request.
(e) Without limiting the provisions of Section 5.02(n), at all times during the Subject Period, (i) the Parent shall not directly hold cash in excess of a de minimis amount, other than on a temporary or pass-through basis held for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), (ii) the Parent’s direct ownership in the Borrower shall at all times account for at least 95% of Total Asset Value; provided, however, that the Parent may hold assets directly on a temporary or pass-through basis for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), and (iii) the Parent shall not incur any direct liabilities in excess of the value of its assets that are not held by the Borrower and its Subsidiaries
Appears in 1 contract
Sources: Credit Agreement (W. P. Carey Inc.)
Release of Subsidiary Guarantors. (a) Within five (5) Business Days following the written request by the Parent Guarantor, the Administrative Agent, on behalf of the Lenders, shall release all Subsidiary Guarantors from their respective obligations under this Agreement and each other Loan Document so long as: (i) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such release; (ii) the Borrower or the Parent Guarantor shall have received and have in effect at such time an Investment Grade Rating; and (iii) a Responsible Officer of the Parent Guarantor shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent stating that each Subsidiary Guarantor is either being released from its obligations obligationobligations under any Senior Financing Transaction or has not then provided (and is not then required by the terms of such Senior Financing Transaction to provide) a guaranty with respect to any Senior Financing Transaction to which any the Parent Guarantorany Loan Party is a party or to which it is simultaneously (or substantially simultaneously) entering into; provided, however, that in the event the Parent Guarantor is not able to make such statement with respect to any specific Subsidiary Guarantor, such Subsidiary Guarantor shall not be released from its obligations under this Agreement and each other Loan Document until the Parent Guarantor makes such statement with respect to such Subsidiary Guarantor, but all other Subsidiary Guarantors shall be released as provided herein (collectively, clauses (i), (ii) and (iii) shall be considered a “Release Event”). In addition, following a Release Event, a Subsidiary of the Parent Guarantor shall not be required to become a Guarantor hereunder unless and until such Subsidiary thereafter becomes a guarantor or borrower in respect of any of the Obligations under a Senior Financing Transaction, in which case such Subsidiary shall become a Guarantor in accordance with Section 5.01(j)(v).
(b) In addition to the foregoing, at any time prior to the date on which the Borrower or the Parent Guarantor shall have received and then have in effect an Investment Grade Rating, within five (5) Business Days after the written request of the Parent Guarantor (each, an “Early Release Request”), including but not limited to, in connection with the sale or financing of any applicable Unencumbered Asset then being designated as a non-Unencumbered Asset as permitted hereunder or the designation or redesignation of a Restricted Subsidiary as an Unrestricted Subsidiary as permitted hereunder, the Administrative Agent, on behalf of the Lenders, shall release the Subsidiary Guarantors designated in such request from their respective obligations under this Agreement and each other Loan Document so long as: (i) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such release; (ii) immediately following such release the Borrower and the Parent Guarantor shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such release; and (iii) the Parent Guarantor shall have delivered to the Administrative Agent (A) a certificate confirming compliance with (i) and (ii) above and (B) an updated Schedule II listing each Unencumbered Asset as of the date such Subsidiary Guarantor is removed as a Guarantor hereunder.
(c) At the written request of the Parent, the Administrative Agent, on behalf of the Lender Parties, shall be authorized to (i) release the Parent from its payment obligations with respect to the Guaranty or (ii) cap the amount of such obligations in a manner satisfactory to the Administrative Agent (any of the actions described in clauses (i) and (ii), a “Subject Action”), so long as (A)(1) in the case of a release, the Parent is either then being released from its Obligations as an obligor under each Senior Financing Transaction or is not then an obligor (and is not then required by the terms of any Senior Financing Transaction to become an obligor) with respect to any Senior Financing Transaction or (2) in the case of a liability cap, the Obligations of the Parent under each Senior Financing Transaction are subject to a parallel liability cap satisfactory to the Administrative Agent, (B) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such Subject Action; (C) immediately following such Subject Action the Borrower and the Parent shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such Subject Action; (D) the Parent shall have delivered to the Administrative Agent a certificate confirming compliance with clauses (B) and (C) above and (E) during the period commencing on the date on which any Subject Action occurs and ending the date (if any) on which the Parent is reinstated as a Guarantor or the liability cap is lifted, as applicable, in accordance with Section 9.14(d) below (such period being the “Subject Period”), the provisions of Section 9.14(e) below shall apply. For the avoidance of doubt, (i) no Subject Action shall release the Parent from any of its Obligations other than its payment Obligations as a Guarantor (and it is the intent of the parties that the Parent shall continue to be bound by all other covenants, representations and other provisions hereof applicable to it notwithstanding the occurrence of any such Subject Action) and only, in the case of a liability cap, to the extent of such cap (provided, however, that such covenants, representations and other provisions shall be deemed to be revised, mutatis mutandis, to the extent necessary to reflect that the Parent is a Loan Party but not a Guarantor) and (ii) the covenants in Section 5.04 shall continue to be calculated based on the Consolidated Group.
(d) Notwithstanding the foregoing, if at any time following a Subject Action (w) the Parent becomes an obligor in respect of a Senior Financing Transaction, (x) the Parent is no longer subject to a parallel liability cap under any Senior Financing Transaction, (y) the Internal Revenue Service issues guidance clarifying that parent guaranties do not preclude the allocation of related debt in satisfaction of “negative basis” issues or (z) the Parent breaches any provision of Section 9.14(e) below, then, as applicable, the Parent shall be reinstated as a Guarantor hereunder or the liability cap on the Parent’s payment obligations under the Guaranty shall be lifted so that the Obligations of the Parent under the Loan Documents shall be pari passu with the Obligations of the Parent under each Senior Financing Transaction, and the Parent shall execute and deliver such confirmations and ratifications of the Guaranty as the Administrative Agent shall request within five (5) Business Days after such request.
(e) Without limiting the provisions of Section 5.02(n), at all times during the Subject Period, (i) the Parent shall not directly hold cash in excess of a de minimis amount, other than on a temporary or pass-through basis held for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), (ii) the Parent’s direct ownership in the Borrower shall at all times account for at least 95% of Total Asset Value; provided, however, that the Parent may hold assets directly on a temporary or pass-through basis for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), and (iii) the Parent shall not incur any direct liabilities in excess of the value of its assets that are not held by the Borrower and its Subsidiaries
Appears in 1 contract
Sources: Term Loan Agreement (Easterly Government Properties, Inc.)
Release of Subsidiary Guarantors. (a) Within five (5) Business Days following The Company may request in writing that the written request by holders of the Parent Notes release a Subsidiary Guarantor, the Administrative Agent, on behalf of the Lenders, shall release all Subsidiary Guarantors from their respective obligations under this Agreement and each other Loan Document so long as: if (i) there is upon its release as a Subsidiary Guarantor, such entity will no monetary Event of Default existing under this Agreement at the time of such request and longer own a Qualifying Unencumbered Project, or if it will continue to own a Qualifying Unencumbered Project, it will not have outstanding any Recourse Indebtedness, (ii) no Default or Event of Default will exist immediately following shall then be in existence or would occur as a result of such release; (ii) the Borrower or the Parent Guarantor shall have received and have in effect at such time an Investment Grade Rating; and , (iii) a Responsible Officer of the Parent Guarantor shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent stating that each Subsidiary Guarantor is either being released from its obligations under any Senior Financing Transaction or has not then provided (and is not then required by the terms of such Senior Financing Transaction to provide) a guaranty with respect to any Senior Financing Transaction to which any Loan Party is a party or to which it is simultaneously (or substantially simultaneously) entering into; provided, however, that in the event the Parent Guarantor is not able to make such statement with respect to any specific Subsidiary Guarantor, such Subsidiary Guarantor shall not have been released, or shall simultaneously be released released, as a guarantor under the Bank Credit Agreement and the Existing Private Placement and (iv) if any fee or other form of consideration is paid for the purpose of releasing such Subsidiary Guarantor from its obligations under this Agreement and each other Loan Document until the Parent Guarantor makes such statement with respect to the Bank Credit Agreement or the Existing Private Placement, then the holders of the Notes shall receive equivalent consideration. Together with any such Subsidiary Guarantorrequest, but all other Subsidiary Guarantors the Company shall be released as provided herein (collectively, deliver to the holders of the Notes an Officer’s Certificate certifying that the conditions set forth in immediately preceding clauses (i), (ii), (iii) and (iiiiv) shall will be considered a “Release Event”)true and correct upon the release of such Subsidiary Guarantor. In addition, No later than 10 Business Days following a Release Event, a Subsidiary the receipt by the holders of the Parent Guarantor shall not be required to become a Guarantor hereunder unless and until Notes of such Subsidiary thereafter becomes a guarantor or borrower in respect of a Senior Financing Transaction, in which case such Subsidiary shall become a Guarantor in accordance with Section 5.01(j)(v).
(b) In addition to the foregoing, at any time prior to the date on which the Borrower or the Parent Guarantor shall have received and then have in effect an Investment Grade Rating, within five (5) Business Days after the written request of and the Parent Guarantor (each, an “Early Release Request”), including but not limited to, in connection with the sale or financing of any applicable Unencumbered Asset then being designated as a non-Unencumbered Asset as permitted hereunder or the designation or redesignation of a Restricted Subsidiary as an Unrestricted Subsidiary as permitted hereunder, the Administrative Agent, on behalf of the Lenders, shall release the Subsidiary Guarantors designated in such request from their respective obligations under this Agreement related Officer’s Certificate and each other Loan Document so long as: (i) there is no monetary Event of Default existing under this Agreement at as the time of such request and no Default or Event of Default will exist conditions set forth in immediately following such release; (ii) immediately following such release the Borrower and the Parent Guarantor shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such release; and (iii) the Parent Guarantor shall have delivered to the Administrative Agent (A) a certificate confirming compliance with (i) and (ii) above and (B) an updated Schedule II listing each Unencumbered Asset as of the date such Subsidiary Guarantor is removed as a Guarantor hereunder.
(c) At the written request of the Parent, the Administrative Agent, on behalf of the Lender Parties, shall be authorized to (i) release the Parent from its payment obligations with respect to the Guaranty or (ii) cap the amount of such obligations in a manner satisfactory to the Administrative Agent (any of the actions described in preceding clauses (i) and ), (ii), a “Subject Action”), so long as (A)(1) in the case of a release, the Parent is either then being released from its Obligations as an obligor under each Senior Financing Transaction or is not then an obligor (and is not then required by the terms of any Senior Financing Transaction to become an obligor) with respect to any Senior Financing Transaction or (2) in the case of a liability cap, the Obligations of the Parent under each Senior Financing Transaction are subject to a parallel liability cap satisfactory to the Administrative Agent, (B) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such Subject Action; (C) immediately following such Subject Action the Borrower and the Parent shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such Subject Action; (D) the Parent shall have delivered to the Administrative Agent a certificate confirming compliance with clauses (Biii) and (Civ) above will be true and (E) during the period commencing on the date on which any Subject Action occurs and ending the date (if any) on which the Parent is reinstated as a Guarantor or the liability cap is lifted, as applicable, in accordance with Section 9.14(d) below (such period being the “Subject Period”)correct, the provisions of Section 9.14(e) below shall apply. For the avoidance of doubt, (i) no Subject Action shall release the Parent from any of its Obligations other than its payment Obligations as a Guarantor (and it is the intent of the parties that the Parent shall continue to be bound by all other covenants, representations and other provisions hereof applicable to it notwithstanding the occurrence of any such Subject Action) and only, in the case of a liability cap, to the extent of such cap (provided, however, that such covenants, representations and other provisions shall be deemed to be revised, mutatis mutandis, to the extent necessary to reflect that the Parent is a Loan Party but not a Guarantor) effective automatically and (ii) the covenants in Section 5.04 shall continue to be calculated based on the Consolidated Group.
(d) Notwithstanding the foregoing, if at any time following a Subject Action (w) the Parent becomes an obligor in respect each holder of a Senior Financing Transaction, (x) the Parent is no longer subject to a parallel liability cap under any Senior Financing Transaction, (y) the Internal Revenue Service issues guidance clarifying that parent guaranties do not preclude the allocation of related debt in satisfaction of “negative basis” issues or (z) the Parent breaches any provision of Section 9.14(e) below, then, as applicable, the Parent shall be reinstated as a Guarantor hereunder or the liability cap on the Parent’s payment obligations under the Guaranty shall be lifted so that the Obligations of the Parent under the Loan Documents shall be pari passu with the Obligations of the Parent under each Senior Financing Transaction, and the Parent Notes shall execute and deliver such confirmations deliver, at the sole cost and ratifications expense of the Guaranty Company, such documents as the Administrative Agent shall Company may reasonably request within five (5) Business Days after to evidence such request.
(e) Without limiting the provisions release. For purposes of this Section 5.02(n9.7(c), at all times during “equivalent consideration” means an amount equal to the Subject Periodpercentage determined by dividing the fees paid under the Bank Credit Agreement or the Existing Private Placement, (i) respectively, by the Parent shall not directly hold cash in excess of a de minimis amountprincipal outstanding amount under the Bank Credit Agreement or the Existing Private Placement, other than on a temporary or pass-through basis held for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B)respectively, (ii) multiplied by the Parent’s direct ownership in the Borrower shall at all times account for at least 95% of Total Asset Value; provided, however, that the Parent may hold assets directly on a temporary or pass-through basis for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), and (iii) the Parent shall not incur any direct liabilities in excess aggregate outstanding principal amount of the value of its assets that are not held by the Borrower and its SubsidiariesNotes.
Appears in 1 contract
Sources: Note Purchase Agreement (Associated Estates Realty Corp)
Release of Subsidiary Guarantors. (a) Within five (5) Business Days following the written request by the Parent Guarantor, the Administrative Agent, on behalf of the LendersLender Parties, shall release all Subsidiary Guarantors from their respective obligations under this Agreement and each other Loan Document so long as: (i) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such release; (ii) the Borrower or the Parent Guarantor shall have received and have in effect at such time an Investment Grade Rating; and (iii) a Responsible Officer of the Parent Guarantor shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent stating that each Subsidiary Guarantor is either being released from its obligations under any Senior Financing Transaction or has not then provided (and is not then required by the terms of such Senior Financing Transaction to provide) a guaranty with respect to any Senior Financing Transaction to which any Loan Party is a party or to which it is simultaneously (or substantially simultaneously) entering into; provided, however, that in the event the Parent Guarantor is not able to make such statement with respect to any specific Subsidiary Guarantor, such Subsidiary Guarantor shall not be released from its obligations under this Agreement and each other Loan Document until the Parent Guarantor makes such statement with respect to such Subsidiary Guarantor, but all other Subsidiary Guarantors shall be released as provided herein (collectively, clauses (i), (ii) and (iii) shall be considered a “Release Event”). In addition, following a Release Event, a Subsidiary of the Parent Guarantor shall not be required to become a Guarantor hereunder unless and until such Subsidiary thereafter becomes a guarantor or borrower in respect of a Senior Financing Transaction, in which case such Subsidiary shall become a Guarantor in accordance with Section 5.01(j)(v).
(b) In addition to the foregoing, at any time prior to the date on which the Borrower or the Parent Guarantor shall have received and then have in effect an Investment Grade Rating, within five (5) Business Days after the written request of the Parent Guarantor (each, an “Early Release Request”), including but not limited to, in connection with the sale or financing of any applicable Unencumbered Asset then being designated as a non-Unencumbered Asset as permitted hereunder or the designation or redesignation of a Restricted Subsidiary as an Unrestricted Subsidiary as permitted hereunder, the Administrative Agent, on behalf of the LendersLender Parties, shall release the Subsidiary Guarantors designated in such request from their respective obligations under this Agreement and each other Loan Document so long as: (i) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such release; (ii) immediately following such release the Borrower and the Parent Guarantor shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such release; and (iii) the Parent Guarantor shall have delivered to the Administrative Agent (A) a certificate confirming compliance with (i) and (ii) above and (B) an updated Schedule II listing each Unencumbered Asset as of the date such Subsidiary Guarantor is removed as a Guarantor hereunder.
(c) At the written request of the Parent, the Administrative Agent, on behalf of the Lender Parties, shall be authorized to (i) release the Parent from its payment obligations with respect to the Guaranty or (ii) cap the amount of such obligations in a manner satisfactory to the Administrative Agent (any of the actions described in clauses (i) and (ii), a “Subject Action”), so long as (A)(1) in the case of a release, the Parent is either then being released from its Obligations as an obligor under each Senior Financing Transaction or is not then an obligor (and is not then required by the terms of any Senior Financing Transaction to become an obligor) with respect to any Senior Financing Transaction or (2) in the case of a liability cap, the Obligations of the Parent under each Senior Financing Transaction are subject to a parallel liability cap satisfactory to the Administrative Agent, (B) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such Subject Action; (C) immediately following such Subject Action the Borrower and the Parent shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such Subject Action; (D) the Parent shall have delivered to the Administrative Agent a certificate confirming compliance with clauses (B) and (C) above and (E) during the period commencing on the date on which any Subject Action occurs and ending the date (if any) on which the Parent is reinstated as a Guarantor or the liability cap is lifted, as applicable, in accordance with Section 9.14(d) below (such period being the “Subject Period”), the provisions of Section 9.14(e) below shall apply. For the avoidance of doubt, (i) no Subject Action shall release the Parent from any of its Obligations other than its payment Obligations as a Guarantor (and it is the intent of the parties that the Parent shall continue to be bound by all other covenants, representations and other provisions hereof applicable to it notwithstanding the occurrence of any such Subject Action) and only, in the case of a liability cap, to the extent of such cap (provided, however, that such covenants, representations and other provisions shall be deemed to be revised, mutatis mutandis, to the extent necessary to reflect that the Parent is a Loan Party but not a Guarantor) and (ii) the covenants in Section 5.04 shall continue to be calculated based on the Consolidated Group.
(d) Notwithstanding the foregoing, if at any time following a Subject Action (w) the Parent becomes an obligor in respect of a Senior Financing Transaction, (x) the Parent is no longer subject to a parallel liability cap under any Senior Financing Transaction, (y) the Internal Revenue Service issues guidance clarifying that parent guaranties do not preclude the allocation of related debt in satisfaction of “negative basis” issues or (z) the Parent breaches any provision of Section 9.14(e) below, then, as applicable, the Parent shall be reinstated as a Guarantor hereunder or the liability cap on the Parent’s payment obligations under the Guaranty shall be lifted so that the Obligations of the Parent under the Loan Documents shall be pari passu with the Obligations of the Parent under each Senior Financing Transaction, and the Parent shall execute and deliver such confirmations and ratifications of the Guaranty as the Administrative Agent shall request within five (5) Business Days after such request.
(e) Without limiting the provisions of Section 5.02(n), at all times during the Subject Period, (i) the Parent shall not directly hold cash in excess of a de minimis amount, other than on a temporary or pass-through basis held for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), (ii) the Parent’s direct ownership in the Borrower shall at all times account for at least 95% of Total Asset Value; provided, however, that the Parent may hold assets directly on a temporary or pass-through basis for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), and (iii) the Parent shall not incur any direct liabilities in excess of the value of its assets that are not held by the Borrower and its Subsidiaries
Appears in 1 contract
Sources: Credit Agreement (Easterly Government Properties, Inc.)
Release of Subsidiary Guarantors. (a1) Within five The Borrower, by written notice to the Lenders, may request that any Subsidiary Guarantor (5other than a Material Subsidiary and other than an Joint Obligor incorporated or existing under the laws of Colombia or El Salvador), be released from all of its obligations and liabilities under this Agreement, and it shall be released from its obligations hereunder, provided that the foregoing is authorized in writing by the Lenders. Such authorization may not be denied without reasonable justification provided that the following requirements are met to the satisfaction of the Lenders: (A) Business Days following a replacement Colombian Promissory Note has been delivered, which shall be duly executed and issued in Colombia by the written request by Borrower and the Parent Guarantor, and subscribed by the Administrative Agent, on behalf of the Lenders, shall release all Subsidiary Guarantors from their respective obligations under this Agreement and each other Loan Document so long as: as endorsers (iavalistas) there is no monetary Event of Default (except for the Subsidiary Guarantors incorporated or existing under this Agreement at the time laws of such request El Salvador and no Default or Event of Default will exist immediately following such release; (ii) the Borrower or the Parent Guarantor shall have received and have in effect at such time an Investment Grade Rating; and (iii) a Responsible Officer of the Parent Guarantor shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent stating that each Subsidiary Guarantor is either being released from its obligations under any Senior Financing Transaction or has not then provided (and is not then required by the terms of such Senior Financing Transaction to provide) a guaranty with respect to any Senior Financing Transaction to which any Loan Party is a party or to which it is simultaneously (or substantially simultaneously) entering into; provided, however, that in the event the Parent Guarantor is not able to make such statement with respect to any specific Subsidiary Guarantor, such Subsidiary Guarantor shall not be released from its obligations under this Agreement and each other Loan Document until pursuant to this Section 5. 01(i)(b)(1), all of the Parent Guarantor makes such statement with respect to foregoing by personal appearance before a notary public in Colombia; (B) if such Subsidiary GuarantorGuarantor is a guarantor or otherwise an obligor under any Material Credit Facility, but all other such Subsidiary Guarantors shall Guarantor has been released and discharged under the respective Material Credit Facility (or will be released as provided herein (collectively, clauses (iand discharged concurrently with the release of such Subsidiary Guarantor under this Agreement), (iiC) and (iii) shall be considered a “Release Event”). In addition, following a Release Event, a Subsidiary of the Parent Guarantor shall not be required to become a Guarantor hereunder unless and until such Subsidiary thereafter becomes a guarantor or borrower in respect of a Senior Financing Transaction, in which case such Subsidiary shall become a Guarantor in accordance with Section 5.01(j)(v).
(b) In addition to the foregoing, at any time prior to the date on which the Borrower or the Parent Guarantor shall have received and then have in effect an Investment Grade Rating, within five (5) Business Days after the written request of the Parent Guarantor (each, an “Early Release Request”), including but not limited to, in connection with the sale or financing of any applicable Unencumbered Asset then being designated as a non-Unencumbered Asset as permitted hereunder or the designation or redesignation of a Restricted Subsidiary as an Unrestricted Subsidiary as permitted hereunder, the Administrative Agent, on behalf of the Lenders, shall release the Subsidiary Guarantors designated in such request from their respective obligations under this Agreement and each other Loan Document so long as: (i) there is no monetary Event of Default existing under this Agreement that at the time of such request release, and after giving effect thereto, the Joint Obligors are in compliance with the obligations set forth in Section 5.02(viii)(a) (on a pro forma basis), and no Default or Event of Default will exist immediately following such release; (ii) immediately following such release the Borrower and the Parent Guarantor shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such release; and (iii) the Parent Guarantor shall have delivered to the Administrative Agent (A) a certificate confirming compliance with (i) and (ii) above and (B) an updated Schedule II listing each Unencumbered Asset as of the date such Subsidiary Guarantor is removed as a Guarantor hereunder.
(c) At the written request of the Parent, the Administrative Agent, on behalf of the Lender Parties, shall be authorized to (i) release the Parent from its payment obligations with respect to the Guaranty or (ii) cap the amount of such obligations in a manner satisfactory to the Administrative Agent (any of the actions described in clauses (i) and (ii), a “Subject Action”), so long as (A)(1) in the case of a release, the Parent is either then being released from its Obligations as an obligor under each Senior Financing Transaction or is not then an obligor (and is not then required by the terms of any Senior Financing Transaction to become an obligor) with respect to any Senior Financing Transaction or (2) in the case of a liability cap, the Obligations of the Parent under each Senior Financing Transaction are subject to a parallel liability cap satisfactory to the Administrative Agentexists, (BD) there is no monetary Event of Default existing amount then due and payable under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such Subject Action; (C) immediately following such Subject Action the Borrower and the Parent shall be in compliance with the covenants in Section 5.04Agreement, on a pro forma basis immediately after giving effect to such Subject Action; (D) the Parent shall have delivered to the Administrative Agent a certificate confirming compliance with clauses (B) and (C) above and (E) during if in connection with the release of such Subsidiary Guarantor under any Material Credit Facility, any fee or other form of consideration is granted to any creditor of the Indebtedness under the respective Material Credit Facility, for such release, the Lenders simultaneously must receive equivalent consideration; and (F) the Lenders have received a certificate from an Authorized Officer of the Borrower certifying that the conditions set forth in paragraphs (A) through (E) above have been satisfied.
(2) For purposes of Section 5.01(i)(b)(1) above, the Lenders shall notify the Borrower within 60 days of their decision on the request for authorization of the release of the respective Subsidiary Guarantor, such period commencing on to be counted from the date on which any Subject Action occurs and ending the date (if any) on which Lenders have received the Parent is reinstated as a Guarantor or the liability cap is lifted, as applicable, in accordance with Section 9.14(d) below (such period being the “Subject Period”), the provisions of Section 9.14(e) below shall apply. For the avoidance of doubt, (i) no Subject Action shall release the Parent from any of its Obligations other than its payment Obligations as a Guarantor (and it is the intent of the parties that the Parent shall continue to be bound by all other covenants, representations and other provisions hereof applicable to it notwithstanding the occurrence of any such Subject Action) and only, in the case of a liability cap, to the extent of such cap (provided, however, that such covenants, representations and other provisions shall be deemed to be revised, mutatis mutandis, to the extent necessary to reflect that the Parent is a Loan Party but not a Guarantor) and (ii) the covenants complete documentation required in Section 5.04 shall continue to be calculated based on the Consolidated Group5.01(i)(b)(1) above.
(d) Notwithstanding the foregoing, if at any time following a Subject Action (w) the Parent becomes an obligor in respect of a Senior Financing Transaction, (x) the Parent is no longer subject to a parallel liability cap under any Senior Financing Transaction, (y) the Internal Revenue Service issues guidance clarifying that parent guaranties do not preclude the allocation of related debt in satisfaction of “negative basis” issues or (z) the Parent breaches any provision of Section 9.14(e) below, then, as applicable, the Parent shall be reinstated as a Guarantor hereunder or the liability cap on the Parent’s payment obligations under the Guaranty shall be lifted so that the Obligations of the Parent under the Loan Documents shall be pari passu with the Obligations of the Parent under each Senior Financing Transaction, and the Parent shall execute and deliver such confirmations and ratifications of the Guaranty as the Administrative Agent shall request within five (5) Business Days after such request.
(e) Without limiting the provisions of Section 5.02(n), at all times during the Subject Period, (i) the Parent shall not directly hold cash in excess of a de minimis amount, other than on a temporary or pass-through basis held for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), (ii) the Parent’s direct ownership in the Borrower shall at all times account for at least 95% of Total Asset Value; provided, however, that the Parent may hold assets directly on a temporary or pass-through basis for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), and (iii) the Parent shall not incur any direct liabilities in excess of the value of its assets that are not held by the Borrower and its Subsidiaries
Appears in 1 contract
Sources: Loan Agreement (Procaps Group, S.A.)
Release of Subsidiary Guarantors. In the event that any Subsidiary Guarantor becomes an Excluded Subsidiary, or ceases to be a Subsidiary as a result of a Disposition permitted under Section 7.05(c), so long as no Event of Default has occurred and is continuing or would result therefrom, such Subsidiary Guarantor shall, upon becoming an Excluded Subsidiary, or upon the consummation of such Disposition, as applicable, be released from its obligations as a Subsidiary Guarantor under the Loan Documents, and the Administrative Agent shall, upon the request and at the sole expense of the Borrower (aand without any consent of the Lenders), provide the Borrower with written confirmation of such release and shall take such further actions as reasonably requested by the Borrower to evidence such release; provided that (i) Within if any Unencumbered Pool Property would become a Removal Property as a result of such release, then such release shall be subject to compliance with the requirements of Section 2.17(b) and (ii) in connection with any such request for written confirmation of such release, the Borrower shall deliver to the Administrative Agent, at least five (5) Business Days following Days’ prior to the date that the Borrower requests delivery of such written confirmation of release (or such shorter period as agreed to by the Administrative Agent in its sole discretion), a written request therefor, which request shall include a certification signed by the Parent Guarantor, the Administrative Agent, on behalf of the Lenders, shall release all Subsidiary Guarantors from their respective obligations under this Agreement and each other Loan Document so long as: (i) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such release; (ii) the Borrower or the Parent Guarantor shall have received and have in effect at such time an Investment Grade Rating; and (iii) a Responsible Officer of the Parent Guarantor shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent Borrower stating that each Subsidiary Guarantor is either being released from its obligations under any Senior Financing Transaction or has not then provided (and is not then required by the terms of such Senior Financing Transaction to provide) a guaranty with respect to any Senior Financing Transaction to which any Loan Party is a party or to which it is simultaneously (or substantially simultaneously) entering into; provided, however, that in the event the Parent Guarantor is not able to make such statement with respect to any specific Subsidiary Guarantor, such Subsidiary Guarantor shall not be released from its obligations under this Agreement and each other Loan Document until the Parent Guarantor makes such statement with respect to such Subsidiary Guarantor, but all other Subsidiary Guarantors shall be released as provided herein (collectively, clauses (i), (ii) and (iii) shall be considered a “Release Event”). In addition, following a Release Event, a Subsidiary of the Parent Guarantor shall not be required to become a Guarantor hereunder unless and until such Subsidiary thereafter becomes a guarantor or borrower in respect of a Senior Financing Transaction, in which case such Subsidiary shall become a Guarantor in accordance with Section 5.01(j)(v).
(b) In addition to the foregoing, at any time prior to the date on which the Borrower or the Parent Guarantor shall have received and then have in effect an Investment Grade Rating, within five (5) Business Days after the written request of the Parent Guarantor (each, an “Early Release Request”), including but not limited to, in connection with the sale or financing of any applicable Unencumbered Asset then being designated as a non-Unencumbered Asset as permitted hereunder or the designation or redesignation of a Restricted Subsidiary as an Unrestricted Subsidiary as permitted hereunder, the Administrative Agent, on behalf of the Lenders, shall release the Subsidiary Guarantors designated in such request from their respective obligations under this Agreement and each other Loan Document so long as: (i) there is no monetary Event of Default existing under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such release; (ii) immediately following such release the Borrower and the Parent Guarantor shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such release; and (iii) the Parent Guarantor shall have delivered to the Administrative Agent (A) a certificate confirming compliance with (i) and (ii) above and (B) an updated Schedule II listing each Unencumbered Asset as of the date such Subsidiary Guarantor is removed as a Guarantor hereunder.
(c) At or shall, upon the written request effectiveness of the Parentrequested release, be) an Excluded Subsidiary, or such Disposition is the Administrative Agent, on behalf of the Lender Parties, shall be authorized to (i) release the Parent from its payment obligations with respect to the Guaranty or (ii) cap the amount of such obligations in a manner satisfactory to the Administrative Agent (any of the actions described in clauses (i) and (ii), a “Subject Action”), so long as (A)(1) in the case result of a release, the Parent is either then being released from its Obligations as an obligor under each Senior Financing Transaction or is not then an obligor (and is not then required by the terms of any Senior Financing Transaction to become an obligor) with respect to any Senior Financing Transaction or (2) in the case of a liability cap, the Obligations of the Parent under each Senior Financing Transaction are subject to a parallel liability cap satisfactory to the Administrative Agent, (B) there is no monetary Event of Default existing transaction permitted under this Agreement at the time of such request and no Default or Event of Default will exist immediately following such Subject Action; (C) immediately following such Subject Action the Borrower and the Parent shall be in compliance with the covenants in Section 5.04, on a pro forma basis immediately after giving effect to such Subject Action; (D) the Parent shall have delivered to the Administrative Agent a certificate confirming compliance with clauses (B) and (C) above and (E) during the period commencing on the date on which any Subject Action occurs and ending the date (if any) on which the Parent is reinstated as a Guarantor or the liability cap is liftedAgreement, as applicable, in accordance with Section 9.14(d) below (such period being the “Subject Period”), the provisions of Section 9.14(e) below shall apply. For the avoidance of doubt, (i) no Subject Action shall release the Parent from any of its Obligations other than its payment Obligations as a Guarantor (and it is the intent of the parties that the Parent shall continue to be bound by all other covenants, representations and other provisions hereof applicable to it notwithstanding the occurrence of any such Subject Action) and only, in the case of a liability cap, to the extent of such cap (provided, however, that such covenants, representations and other provisions shall be deemed to be revised, mutatis mutandis, to the extent necessary to reflect that the Parent is a Loan Party but not a Guarantor) and (ii) the covenants in Section 5.04 shall continue to be calculated based on the Consolidated Group.
(d) Notwithstanding the foregoing, if at any time following a Subject Action (w) the Parent becomes an obligor in respect of a Senior Financing Transaction, (x) the Parent is no longer subject to a parallel liability cap under any Senior Financing Transaction, (y) the Internal Revenue Service issues guidance clarifying that parent guaranties do not preclude the allocation of related debt in satisfaction of “negative basis” issues or (z) the Parent breaches any provision of Section 9.14(e) below, then, as applicable, the Parent shall be reinstated as a Guarantor hereunder or the liability cap on the Parent’s payment obligations under the Guaranty shall be lifted so that the Obligations of the Parent under the Loan Documents shall be pari passu with the Obligations of the Parent under each Senior Financing Transaction, and the Parent shall execute and deliver such confirmations and ratifications of the Guaranty as the Administrative Agent shall request within five (5) Business Days after such request.
(e) Without limiting the provisions of Section 5.02(n), at all times during the Subject Period, (i) the Parent shall not directly hold cash in excess of a de minimis amount, other than on a temporary or pass-through basis held for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), (ii) the Parent’s direct ownership in the Borrower shall at all times account for at least 95% of Total Asset Value; provided, however, that the Parent may hold assets directly on a temporary or pass-through basis for not more than one Business Day in accordance with Sections 5.02(n)(iii)(A) and (B), and (iii) the Parent shall not incur any direct liabilities in excess of the value of its assets that are not held by the Borrower and its Subsidiaries
Appears in 1 contract