Common use of Covenant to Guarantee Obligations Clause in Contracts

Covenant to Guarantee Obligations. The Loan Parties will cause each of their Material Subsidiaries whether newly formed, after acquired or otherwise existing to promptly (and in any event within thirty (30) days after such Subsidiary is formed or acquired or otherwise becomes a Material Subsidiary (or such longer period of time as agreed to by the Administrative Agent in its reasonable discretion)) become a Guarantor hereunder by way of execution of a Joinder Agreement; provided that (a) no Foreign Subsidiary shall be required to become a Guarantor to the extent (i) such Guaranty would result in a material adverse tax or regulatory consequence for any Loan Party or any of its Subsidiaries or (ii) a material impediment to such Foreign Subsidiary becoming a Guarantor (including, without limitation, repatriation limitations) exists under the Laws governing such Foreign Subsidiary and (b) the Loan Parties shall designate one or more Subsidiaries (other than Foreign Subsidiaries subject to clause (a) above) as Material Subsidiaries and cause such Subsidiaries to become Guarantors and take such additional actions of the type described below in this Section to the extent necessary to cause the Obligations of the Borrower to be guaranteed by, and secured by the assets of Subsidiaries that, together with the Borrower, account for at least (i) 90% of the total assets of the Borrower and its Subsidiaries on a Consolidated basis (calculated as of the last day of the Measurement Period most recently ended on or before such date), or such lesser amount as may be represented by all operating Domestic Subsidiaries of the Borrower and (ii) 90% of the revenue of the Borrower and its Subsidiaries on a Consolidated basis (calculated for the Measurement Period most recently ended on or before such date) or such lesser amount as may be represented by all operating Domestic Subsidiaries of the Borrower. For purposes of the foregoing calculations, (x) assets shall be determined as of the last day of the most recently ended fiscal quarter for which financial information is available, (y) revenues shall be determined on a Pro Forma Basis using the results of the Measurement Period of the Borrower most recently ended for which financial information is available, and (z) the assets and revenues of a Subsidiary shall not be deemed to include the assets and revenue of its Subsidiaries. In connection therewith, the Loan Parties shall give notice to the Administrative Agent not less than ten (10) days prior to creating a Material Subsidiary (or such later date as agreed to by the Administrative Agent in its reasonable discretion), or acquiring the Equity Interests of any other Person who is a Material Subsidiary. In connection with the foregoing, the Loan Parties shall deliver to the Administrative Agent, with respect to each new Guarantor to the extent applicable, substantially the same documentation required pursuant to Sections 4.01(b) – (f), (k) and 6.13 and such other documents or agreements as the Administrative Agent may reasonably request, including without limitation, updated Schedules 1.01(c), 5.19(a), 5.19(b), 5.20(c), and 5.20(d).

Covenant to Guarantee Obligations. The Loan Parties will (a) FNIS shall cause each the following Restricted Subsidiaries to guarantee the Guaranteed Obligations: such Restricted Subsidiaries as shall constitute (x) at least 95% of their Material the Consolidated EBITDA of FNIS and its Domestic Subsidiaries whether newly formed(excluding, after acquired or otherwise existing for the purposes of such calculation, (1) all Unrestricted Subsidiaries, but including any Subsidiaries that were, at one time, designated as Unrestricted Subsidiaries, but have been redesignated as Restricted Subsidiaries pursuant to promptly Section 11 of this Annex C and (2) all Prohibited Restricted Subsidiaries described in the following sentence for so long as the relevant Indebtedness remains outstanding) for the four fiscal quarters most recently ended for which financial statements have been delivered pursuant to Section 1 of this Annex C and (y) at least 95% of the Total Assets of FNIS and its Domestic Subsidiaries (excluding, for the purposes of such calculation, (1) all Unrestricted Subsidiaries, but including any Subsidiaries that were, at one time, designated as Unrestricted Subsidiaries, but have been redesignated as Restricted Subsidiaries pursuant to Section 11 of this Annex C and (2) all Prohibited Restricted Subsidiaries described in the following sentence for so long as the relevant Indebtedness remains outstanding) as of the last day of the fiscal quarter most recently ended for which financial statements have been delivered pursuant to Section 1 of this Annex C. Notwithstanding the foregoing, (i) any event within thirty Restricted Subsidiary that is a guarantor of any Permitted Subordinated Indebtedness shall also be required to be a Guarantor, (30ii) days after no Subsidiary shall be required to be a Guarantor if such Subsidiary is formed a Foreign Subsidiary or acquired or otherwise becomes a Material Domestic Subsidiary (or such longer period of time as agreed to by the Administrative Agent in its reasonable discretion)) become a Guarantor hereunder by way of execution of a Joinder Agreement; provided that Foreign Subsidiary and (aiii) no Foreign Restricted Subsidiary that is prohibited from guaranteeing the Guaranteed Obligations pursuant to documents governing any Indebtedness assumed in connection with a Permitted Acquisition and not incurred in contemplation thereof (each, a “Prohibited Restricted Subsidiary”) shall be required to become a Guarantor to the extent (i) for so long as such Guaranty would result in a material adverse tax or regulatory consequence for any Loan Party or any of its Subsidiaries or (ii) a material impediment to such Foreign Subsidiary becoming a Guarantor (including, without limitation, repatriation limitations) exists under the Laws governing such Foreign Subsidiary and (b) the Loan Parties shall designate one or more Subsidiaries (other than Foreign Subsidiaries subject to clause (a) above) as Material Subsidiaries and cause such Subsidiaries to become Guarantors and take such additional actions of the type described below in this Section to the extent necessary to cause the Obligations of the Borrower to be guaranteed by, and secured by the assets of Subsidiaries that, together with the Borrower, account for at least (i) 90% of the total assets of the Borrower and its Subsidiaries on a Consolidated basis (calculated as of the last day of the Measurement Period most recently ended on or before such date), or such lesser amount as may be represented by all operating Domestic Subsidiaries of the Borrower and (ii) 90% of the revenue of the Borrower and its Subsidiaries on a Consolidated basis (calculated for the Measurement Period most recently ended on or before such date) or such lesser amount as may be represented by all operating Domestic Subsidiaries of the Borrower. For purposes of the foregoing calculations, (x) assets shall be determined as of the last day of the most recently ended fiscal quarter for which financial information is available, (y) revenues shall be determined on a Pro Forma Basis using the results of the Measurement Period of the Borrower most recently ended for which financial information is available, and (z) the assets and revenues of a Subsidiary shall not be deemed to include the assets and revenue of its Subsidiaries. In connection therewith, the Loan Parties shall give notice to the Administrative Agent not less than ten (10) days prior to creating a Material Subsidiary (or such later date as agreed to by the Administrative Agent in its reasonable discretion), or acquiring the Equity Interests of any other Person who is a Material Subsidiary. In connection with the foregoing, the Loan Parties shall deliver to the Administrative Agent, with respect to each new Guarantor to the extent applicable, substantially the same documentation required pursuant to Sections 4.01(b) – (f), (k) and 6.13 and such other documents or agreements as the Administrative Agent may reasonably request, including without limitation, updated Schedules 1.01(c), 5.19(a), 5.19(b), 5.20(c), and 5.20(d)Indebtedness remains outstanding.

Covenant to Guarantee Obligations. The Loan Parties will cause each of their Material Subsidiaries whether newly formed, after acquired or otherwise existing to promptly (and in any event within thirty (30) days after such Subsidiary is formed or acquired or otherwise becomes a Material Subsidiary (or such longer period of time as agreed to by the Administrative Agent in its reasonable discretion)) become a Guarantor hereunder by way of execution of a Joinder Agreement; provided that (a) no Foreign Subsidiary shall be required to become a Guarantor to the extent (i) such Guaranty would result in a material adverse tax or regulatory consequence for any Loan Party or any of its Subsidiaries or (ii) a material impediment to such Foreign Subsidiary becoming a Guarantor (including, without limitation, repatriation limitations) exists under the Laws governing such Foreign Subsidiary and (b) the Loan Parties shall designate one or more Subsidiaries (other than Foreign Subsidiaries subject to clause (a) above) as Material Subsidiaries and cause such Subsidiaries to become Guarantors and take such additional actions of the type described below in this Section to the extent necessary to cause the Obligations of the Borrower to be guaranteed by, and secured by the assets of Subsidiaries that, together with the Borrower, account for at least (i) 90% of the total assets of the Borrower and its Subsidiaries on a Consolidated basis (calculated as of the last day of the Measurement Period most recently ended on or before such date), or such lesser amount as may be represented by all operating Domestic Subsidiaries of the Borrower and (ii) 90% of the revenue of the Borrower and its Subsidiaries on a Consolidated basis (calculated for the Measurement Period most recently ended on or before such date) or such lesser amount as may be represented by all operating Domestic Subsidiaries of the Borrower. For purposes of the foregoing calculations, (x) assets shall be determined as of the last day of the most recently ended fiscal quarter for which financial information is available, (y) revenues shall be determined on a Pro Forma Basis using the results of the Measurement Period of the Borrower most recently ended for which financial information is available, and (z) the assets and revenues of a Subsidiary shall not be deemed to include the assets and revenue of its Subsidiaries. In connection therewith, the Loan Parties shall give notice to the Administrative Agent not less than ten (10) days prior to creating a Material Subsidiary (or such later date shorter period of time as agreed to by the Administrative Agent in its reasonable discretion), or acquiring the Equity Interests of any other Person who is a Material Subsidiary. In connection with the foregoing, the Loan Parties shall deliver to the Administrative Agent, with respect to each new Guarantor to the extent applicable, substantially the same documentation required pursuant to Sections 4.01(b) – (f), (k) and 6.13 and such other documents or agreements as the Administrative Agent may reasonably request, including without limitation, updated Schedules 1.01(c), 5.19(a), 5.19(b), 5.20(c), and 5.20(d).

Covenant to Guarantee Obligations. The Loan Parties will cause each of their Material Subsidiaries whether newly formed, after acquired or otherwise existing to promptly (and in any event within thirty (30) days after such Subsidiary is formed or acquired or otherwise becomes a Material Subsidiary (or such longer period of time as agreed to by the Administrative Agent in its reasonable discretion)) become a Guarantor hereunder by way of execution of a Joinder Agreement; provided that (a) no Foreign Subsidiary shall be required to become a Guarantor to the extent (i) such Guaranty would result in a material adverse tax or regulatory consequence for any Loan Party or any of its Subsidiaries or (ii) a material impediment to such Foreign Subsidiary becoming a Guarantor (including, without limitation, repatriation limitations) exists under the Laws governing such Foreign Subsidiary and (b) the Loan Parties shall designate one or more Subsidiaries (other than Foreign Subsidiaries subject to clause (a) above) as Material Subsidiaries and cause such Subsidiaries to become Guarantors and take such additional actions of the type described below in this Section to the extent necessary to cause the Obligations of the Borrower to be guaranteed by, and secured by the assets of Subsidiaries that, together with the Borrower, account for at least (i) 90% of the total assets of the Borrower and its Subsidiaries on a Consolidated basis (calculated as of the last day of the Measurement Period most recently ended on or before such date), or such lesser amount as may be represented by all operating Domestic Subsidiaries of the Borrower and (ii) 90% of the revenue of the Borrower and its Subsidiaries on a Consolidated basis (calculated for the Measurement Period most recently ended on or before such date) or such lesser amount as may be represented by all operating Domestic Subsidiaries of the Borrower. For purposes of the foregoing calculations, (x) assets shall be determined as of the last day of the most recently ended fiscal quarter for which financial information is available, (y) revenues shall be determined on a Pro Forma Basis using the results of the Measurement Period of the Borrower most recently ended for which financial information is available, and (z) the assets and revenues of a Subsidiary shall not be deemed to include the assets and revenue of its Subsidiaries. In connection therewith, the Loan Parties shall give notice to the Administrative Agent not less than ten (10) days prior to creating a Material Subsidiary (or such later date as agreed to by the Administrative Agent in its reasonable discretion), or acquiring the Equity Interests of any other Person who is a Material Subsidiary. In connection with the foregoing, the Loan Parties shall deliver to the Administrative Agent, with respect to each new Guarantor to the extent applicable, substantially the same documentation required pursuant to Sections 4.01(b) – - (f), (k) and 6.13 and such other documents or agreements as the Administrative Agent may reasonably request, including without limitation, updated Schedules 1.01(c), 5.19(a), 5.19(b), 5.20(c), and 5.20(d).

Covenant to Guarantee Obligations. The Loan Parties will cause (a) Upon (i) the formation or acquisition after the Closing Date of any Restricted Subsidiary that is a Domestic Subsidiary (other than an Excluded Subsidiary), (ii) the designation of any Unrestricted Subsidiary that is a Domestic Subsidiary as a Restricted Subsidiary (other than an Excluded Subsidiary), (iii) any Restricted Subsidiary that is a Domestic Subsidiary ceasing to be an Immaterial Subsidiary (other than an Excluded Subsidiary) or (iv) any Restricted Subsidiary that was an Excluded Subsidiary ceasing to be an Excluded Subsidiary, (x) if the event giving rise to the obligation under this Section 5.12(a) occurs during the first three Fiscal Quarters of any Fiscal Year, on or before the later of (1) the date on which the Compliance Certificate with respect to the Fiscal Quarter in which the relevant event occurs is required to be delivered pursuant to Section 5.01(c) and (2) 60 days after the date on which the relevant event occurs or (y) if the event giving rise to the obligation under this Section 5.12(a) occurs during the fourth Fiscal Quarter of any Fiscal Year, on or before the later of (1) the date on which the Compliance Certificate is required to be delivered pursuant to Section 5.01(c) with respect to such Fiscal Year and (2) 60 days after the date on which the relevant event occurs (or, in the case of each of their Material Subsidiaries whether newly formedclauses (x) and (y), after acquired or otherwise existing to promptly (and in any event within thirty (30) days after such Subsidiary is formed or acquired or otherwise becomes a Material Subsidiary (or such longer period as the Administrative Agent may reasonably agree), the Borrower shall (A) cause such Restricted Subsidiary (other than any Excluded Subsidiary) to comply with the requirements set forth in the definition of time “Guarantee Requirement” and (B) upon the reasonable request of the Administrative Agent, cause such Restricted Subsidiary (other than any Excluded Subsidiary) to deliver to the Administrative Agent customary evidence of authority and good standing and a customary opinion of counsel for such Restricted Subsidiary, in each case, consistent with that provided by the Loan Parties on the Closing Date pursuant to Section 4.02(b) and (c); provided, that the Borrower may, in its sole discretion elect to join any Foreign Subsidiary, any non-wholly-owned Domestic Subsidiary, but excluding any Unrestricted Subsidiary, or any other Excluded Subsidiary (including any subsidiary organized under the laws of Puerto Rico) as agreed a Guarantor (any such subsidiary, an “Electing Subsidiary”); provided that (1) written notice of such election must be provided to the Administrative Agent at least ten (10) Business Days prior to the effectiveness thereof, (2) the Borrower shall have delivered to the Administrative Agent all documentation and other information requested by the Administrative Agent in its reasonable discretion)with respect to such Electing Subsidiary (including any Beneficial Ownership Certification) become a Guarantor hereunder required by way of execution of a Joinder Agreement; provided that (a) regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and the Beneficial Ownership Regulation, no Foreign Subsidiary shall be required to become a Guarantor later than two Business Days prior to the extent (i) date of such Guaranty would result in a material adverse tax or regulatory consequence for any Loan Party or any of its Subsidiaries or (ii) a material impediment to such Foreign Subsidiary becoming a Guarantor (including, without limitation, repatriation limitations) exists under the Laws governing such Foreign Subsidiary and (b) the Loan Parties shall designate one or more Subsidiaries (other than Foreign Subsidiaries subject to clause (a) above) as Material Subsidiaries and cause such Subsidiaries to become Guarantors and take such additional actions of the type described below in this Section to the extent necessary to cause the Obligations of the Borrower to be guaranteed by, and secured by the assets of Subsidiaries that, together with the Borrower, account for at least (i) 90% of the total assets of the Borrower and its Subsidiaries on a Consolidated basis (calculated as of the last day of the Measurement Period most recently ended on or before such date), or such lesser amount as may be represented by all operating Domestic Subsidiaries of the Borrower and (ii) 90% of the revenue of the Borrower and its Subsidiaries on a Consolidated basis (calculated for the Measurement Period most recently ended on or before such date) or such lesser amount as may be represented by all operating Domestic Subsidiaries of the Borrower. For purposes of the foregoing calculations, (x) assets shall be determined as of the last day of the most recently ended fiscal quarter for which financial information is available, (y) revenues shall be determined on a Pro Forma Basis using the results of the Measurement Period of the Borrower most recently ended for which financial information is available, and (z) the assets and revenues of a Subsidiary shall not be deemed to include the assets and revenue of its Subsidiaries. In connection therewith, the Loan Parties shall give notice to the Administrative Agent not less than ten (10) days prior to creating a Material Subsidiary effectiveness (or such later date as may be agreed by the Administrative Agent), (3) if such subsidiary is a Foreign Subsidiary, the jurisdiction of incorporation of such Foreign Subsidiary shall be reasonably satisfactory to by the Administrative Agent in its reasonable discretion)light of legal permissibility and the policies and procedures of the Administrative Agent and the Lenders for similarly situated companies (for the avoidance of doubt, or acquiring as reasonably determined by the Equity Interests Administrative Agent) and the Administrative Agent shall have received customary evidence of any other Person who is authority and good standing (to the extent applicable in the relevant jurisdiction) and a Material Subsidiary. In connection customary opinion of counsel for such subsidiary, in each case consistent with the foregoing, that provided by the Loan Parties shall deliver to on the Administrative Agent, with respect to each new Guarantor to the extent applicable, substantially the same documentation required Closing Date pursuant to Sections 4.01(b) – (f), (kSection 4.02(b) and 6.13 (c); provided that, for the avoidance of doubt, the Borrower shall be permitted to cause any U.S. subsidiary that constitutes a non-Wholly-Owned Subsidiary or otherwise constitutes an Excluded Subsidiary (other than a non-U.S. subsidiary) to be a guarantor under the Facilities Documentation without satisfying the requirements of clause (3) of this sentence; and provided, further that, the Borrower may subsequently elect to release any such other documents or agreements Electing Subsidiary (a “Released Subsidiary”) as a Guarantor in its sole discretion by giving the Administrative Agent may notice of such election, so long as at the time of the release such Released Subsidiary constitutes an Excluded Subsidiary; provided that such release shall only be permitted if, as of the date of such release, (A) the Borrower and its Restricted Subsidiaries have the capacity to make an Investment in such Released Subsidiary (in an amount equal to the portion of the fair market value of the net assets of such Released Subsidiary attributable to the Borrower’s (or its applicable Restricted Subsidiary’s) equity interest therein, as reasonably requestestimated by the Borrower) under Section 6.05 once it is no longer a Loan Guarantor, including without limitation(B) such Released Subsidiary has the capacity to incur all of its existing Indebtedness or Liens under Section 6.01 or Section 6.02 once it is no longer a Loan Guarantor and (C) in the case of any such release of a Released Subsidiary due to such Released Subsidiary becoming an Excluded Subsidiary of the kind described in clause (a) of the definition thereof, updated Schedules 1.01(c), 5.19(a), 5.19(b), 5.20(c), and 5.20(d)such release shall only be permitted if such Released Subsidiary becomes an Excluded Subsidiary or such kind pursuant to an arm’s length sale of Capital Stock in such Released Subsidiary to a bona fide third party purchaser.

Covenant to Guarantee Obligations. The Ultimate Parent, Intermediate Parent, the Borrower and the other Loan Parties will cause each Subsidiary of their Material Subsidiaries whether newly formedUltimate Parent (other than the Borrower, but including, after acquired or otherwise existing to promptly (and in consummation of the Allergan Acquisition, the Allergan Acquired Business) that, at any event within thirty (30) days time after such Subsidiary is formed or acquired or otherwise becomes the Effective Date, provides a Material Subsidiary (or such longer period Guarantee of time as agreed to by the Administrative Agent in its reasonable discretion)) become a Guarantor hereunder by way third party Indebtedness of execution of a Joinder Agreement; provided that (a) no Foreign Subsidiary shall be required to become a Guarantor to the extent (i) such Guaranty would result in a material adverse tax or regulatory consequence for any Loan Party Ultimate Parent or any of its Subsidiaries (including, after consummation of the Allergan Acquisition, third party Indebtedness of the Allergan Acquired Business) in an aggregate principal amount or commitment amount exceeding $350,000,000, to deliver, within 30 days (or such later time as may be reasonably requested in writing by Ultimate Parent and accepted by the Administrative Agent) of such Subsidiary providing such Guarantee, to the Administrative Agent (a) a duly executed Subsidiary Guarantor Counterpart pursuant to which such Subsidiary agrees to be bound by the terms and provisions of the Obligations Guarantee and such Subsidiary Guarantor Counterpart and (b) documents of the types referred to in Sections 4.01(b)(i) and 4.01(e) and opinions of counsel to such Subsidiary (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clause (a)) in form and substance reasonably satisfactory to the Administrative Agent; provided that the foregoing requirements shall not apply to (i) any Subsidiary that, on the Effective Date, is a borrower or a guarantor under the WC Term Loan Credit Agreement unless such Subsidiary has provided a Guarantee of (A) the Existing Actavis Term Loan Credit Agreement, (B) the New Actavis Term Loan Credit Agreement or (C) any other third party Indebtedness of Ultimate Parent or any Subsidiary (including the Allergan Bridge Facility) in an aggregate principal amount or commitment amount exceeding $350,000,000 or (ii) a material impediment to any Foreign Subsidiary, if the provision of an Obligations Guarantee by such Foreign Subsidiary becoming would give rise to adverse tax consequences to Ultimate Parent and its Subsidiaries, as reasonably determined by Ultimate Parent. In the case of any Obligations Guarantee by a Guarantor (includingSubsidiary required under this Section 6.12, without limitation, repatriation limitations) exists under the Laws governing such Foreign Obligations Guarantee by such Subsidiary and (b) the Loan Parties shall designate one or more Subsidiaries be automatically released at such time as such Subsidiary no longer Guarantees such other Indebtedness (other than Foreign Subsidiaries subject to clause (a) above) as Material Subsidiaries and cause such Subsidiaries to become Guarantors and take such additional actions a result of the type described below in this Section to the extent necessary to cause the Obligations collection on its Guarantee of the Borrower to be guaranteed by, and secured by the assets of Subsidiaries that, together with the Borrower, account for at least (i) 90% of the total assets of the Borrower and its Subsidiaries on a Consolidated basis (calculated as of the last day of the Measurement Period most recently ended on or before such date), or such lesser amount as may be represented by all operating Domestic Subsidiaries of the Borrower and (ii) 90% of the revenue of the Borrower and its Subsidiaries on a Consolidated basis (calculated for the Measurement Period most recently ended on or before such date) or such lesser amount as may be represented by all operating Domestic Subsidiaries of the Borrower. For purposes of the foregoing calculations, (x) assets shall be determined as of the last day of the most recently ended fiscal quarter for which financial information is available, (y) revenues shall be determined on a Pro Forma Basis using the results of the Measurement Period of the Borrower most recently ended for which financial information is available, and (z) the assets and revenues of a Subsidiary shall not be deemed to include the assets and revenue of its Subsidiaries. In connection therewith, the Loan Parties shall give notice to the Administrative Agent not less than ten (10) days prior to creating a Material Subsidiary (or such later date as agreed to by the Administrative Agent in its reasonable discretion), or acquiring the Equity Interests of any other Person who is a Material Subsidiary. In connection with the foregoing, the Loan Parties shall deliver to the Administrative Agent, with respect to each new Guarantor to the extent applicable, substantially the same documentation required pursuant to Sections 4.01(b) – (f), (k) and 6.13 and such other documents or agreements as the Administrative Agent may reasonably request, including without limitation, updated Schedules 1.01(c), 5.19(a), 5.19(b), 5.20(c), and 5.20(dIndebtedness).

Covenant to Guarantee Obligations. The If after the Closing Date, based on the most recent consolidated financial statements of the Borrower provided or required to be provided to the Administrative Agent pursuant to Section 6.01, the Consolidated EBITDA and the Consolidated Total Net Assets of the Loan Parties will (calculated only in respect of the Borrower and all Subsidiaries that are Guarantors) do not represent at least eighty-five per cent (85.0%) of the Consolidated EBITDA and the Consolidated Total Net Assets, respectively, of the Borrower, then the Borrower shall cause each one or more of their Material its Subsidiaries whether newly formed, after acquired or otherwise existing to promptly (become a Guarantor hereunder by executing and delivering a subsidiary guarantor joinder agreement substantially in any event the form attached hereto as Exhibit F within thirty (30) days from such determination so that, on a pro forma basis after any such Subsidiary is formed or acquired or otherwise becomes a Material Subsidiary Guarantor, the Consolidated EBITDA and the Consolidated Total Net Assets of the Borrower and the Guarantors would represent at least eighty-five per cent (or 85.0%) of the Consolidated EBITDA and the Consolidated Total Net Assets of the Borrower. The Borrower shall have the right, at any time and from time to time, as of the last day of any fiscal quarter (such longer period of time as agreed date, the “reference date”), to request by written notice to the Administrative Agent in its reasonable discretion)) become a Guarantor hereunder by way the release of execution of a Joinder Agreement; provided that (a) no Foreign Subsidiary shall be required to become a Guarantor to the extent (i) such Guaranty would result in a material adverse tax or regulatory consequence for any Loan Party or any of its Subsidiaries or (ii) a material impediment to such Foreign Subsidiary becoming a Guarantor (including, without limitation, repatriation limitations) exists under the Laws governing such Foreign Subsidiary and (b) the Loan Parties shall designate one or more Subsidiaries Guarantors (any such Guarantor, a “Reference Guarantor”), other than Foreign Subsidiaries subject to clause any Guarantor that has total net assets in excess of five per cent (a5%) above) as Material Subsidiaries and cause such Subsidiaries to become Guarantors and take such additional actions of the type described below in this Section to the extent necessary to cause the Obligations of the Borrower to be guaranteed by, and secured by the assets of Subsidiaries that, together with the Borrower, account for at least (i) 90% of the total assets Consolidated Total Net Assets of the Borrower and its Subsidiaries on a or whose portion of Consolidated basis EBITDA exceeds five per cent (calculated as 5%) of the last day of the Measurement Period most recently ended on or before such date), or such lesser amount as may be represented by all operating Domestic Subsidiaries of the Borrower and (ii) 90% of the revenue Consolidated EBITDA of the Borrower and its Subsidiaries on a (based upon and as of the date of delivery of the most recent consolidated financial statements of the Borrower furnished pursuant to Section 6.01), from its obligations under the Loan Documents, but only to the extent that, (i) after giving effect to the proposed release of such Reference Guarantor as Guarantor hereunder, the Consolidated basis (calculated EBITDA of the Loan Parties for the Measurement Period most recently ended on or before such datethe reference date represents at least eighty-five per cent (85.0%) or such lesser amount as may be represented by all operating Domestic Subsidiaries of the Borrower. For purposes Consolidated EBITDA of the foregoing calculationsLoan Parties for the Measurement Period ended on the reference date, (x) assets shall be determined and the Consolidated Total Net Assets of the Loan Parties as of the last day reference date represent at least eighty-five per cent (85.0%) of the most recently ended fiscal quarter for which financial information is availableConsolidated Total Net Assets of the Loan Parties, (yii) revenues at the time of, and after giving effect to, such proposed release and discharge, no Default or Event of Default shall be determined on a Pro Forma Basis using the results of the Measurement Period of the Borrower most recently ended for which financial information exist, (iii) no amount is availablethen due and payable under any Guaranty hereunder, and (ziv) the assets and revenues Administrative Agent (for further distribution to the Lenders) shall have received a certificate of a Subsidiary Responsible Officer of the Parent certifying as to the matters set forth in clauses (i) through (iii), which in the case of clause (i) shall not be deemed to include detailed calculations evidencing such compliance. Upon delivery of any such written notice by the assets and revenue of its Subsidiaries. In connection therewith, the Loan Parties shall give notice Borrower to the Administrative Agent not less than ten and the Lenders (10) days prior together with calculations in reasonable detail to creating a Material Subsidiary (or such later date as agreed to by that effect and compliance with the foregoing requirements), the Administrative Agent shall, if instructed by all Lenders in its their reasonable discretion), or acquiring at the Equity Interests sole cost and expense of the Borrower, take such actions and execute and deliver such agreements, instruments and documents as may be necessary (and, in each case, as reasonably requested by the Borrower) in order to evidence any other Person who is a Material Subsidiary. In connection with the foregoing, the Loan Parties shall deliver to the Administrative Agent, with respect to each new Guarantor to the extent applicable, substantially the same documentation required pursuant to Sections 4.01(b) – (f), (k) and 6.13 and such other documents or agreements as the Administrative Agent may reasonably request, including without limitation, updated Schedules 1.01(c), 5.19(a), 5.19(b), 5.20(c), and 5.20(d)release.

Covenant to Guarantee Obligations. The Loan Parties Except in respect of Fabrinet Thailand, for which the provisions of Section 6.18(a) shall govern exclusively, theThe Company will cause each of their its Material Subsidiaries (other than any Excluded Subsidiary) whether newly formed, after acquired or otherwise existing existing, to promptly (and in any event within thirty (30) days after such Material Subsidiary (other than any Excluded Subsidiary) is formed or acquired or otherwise becomes a Material Subsidiary (or such longer period of time as agreed to by the Administrative Agent in its reasonable discretion)) become a Guarantor hereunder by way of execution of a Joinder Agreement; provided that in the case of any Thai Material Subsidiary that is required under the Foreign Business Act B.E. 2542 (a) no Foreign Subsidiary shall be required 1999), as amended, to obtain a Thai Guarantee License in order to become a Guarantor to hereunder, the extent (i) Guaranty of such Guaranty would result in a material adverse tax or regulatory consequence for any Loan Party or any of its Subsidiaries or (ii) a material impediment to such Foreign Subsidiary becoming a Guarantor (including, without limitation, repatriation limitations) exists under the Laws governing such Foreign Subsidiary and (b) the Loan Parties shall designate one or more Subsidiaries (other than Foreign Subsidiaries subject to clause (a) above) as Thai Material Subsidiaries and cause such Subsidiaries to become Guarantors and take such additional actions of the type described below in this Section to the extent necessary to cause the Obligations of the Borrower to be guaranteed by, and secured by the assets of Subsidiaries that, together with the Borrower, account for at least (i) 90% of the total assets of the Borrower and its Subsidiaries on a Consolidated basis (calculated as of the last day of the Measurement Period most recently ended on or before such date), or such lesser amount as may be represented by all operating Domestic Subsidiaries of the Borrower and (ii) 90% of the revenue of the Borrower and its Subsidiaries on a Consolidated basis (calculated for the Measurement Period most recently ended on or before such date) or such lesser amount as may be represented by all operating Domestic Subsidiaries of the Borrower. For purposes of the foregoing calculations, (x) assets shall be determined as of the last day of the most recently ended fiscal quarter for which financial information is available, (y) revenues shall be determined on a Pro Forma Basis using the results of the Measurement Period of the Borrower most recently ended for which financial information is available, and (z) the assets and revenues of a Subsidiary shall not be deemed effective until such Thai Material Subsidiary shall have obtained a Thai Guarantee License and each of the Company and the relevant Thai Material Subsidiary shall use its best efforts to include promptly obtain the assets Thai Guarantee License (and revenue the time period for such Thai Material Subsidiary to become a Guarantor hereunder shall be automatically extended to permit the Thai Material Subsidiary to obtain such Thai Guarantee License and satisfy the other requirements of its Subsidiariesthis Section 6.13). In connection therewith, the Loan Parties Company shall give notice to the Administrative Agent not less than ten five (105) days prior to creating a Material Subsidiary (or such later date shorter period of time as agreed to by the Administrative Agent in its reasonable discretion), ) prior to creating or acquiring the Equity Interests of any other Person who is a Material Subsidiary (which such notice shall include, as applicable, notice that such Material Subsidiary shall constitute an Excluded Subsidiary). In connection with the foregoingJoinder Agreement and concurrently therewith, the Loan Parties Company shall deliver to the Administrative Agent, with respect to each new Guarantor Guarantor, to the extent applicable, (a) substantially the same documentation required pursuant to Sections 4.01(b) – (f)) and 6.14, (kb) such updates to the Disclosure Letter as may be necessary with respect to such Guarantor and 6.13 and (c) such other documents or agreements as the Administrative Agent may reasonably request; provided that in the case of any Thai Material Subsidiary, including without limitation, updated Schedules 1.01(csuch Thai Material Subsidiary shall also promptly deliver to the Administrative Agent certified copies of (i) a Thai Guarantee License (to the extent that such Thai Material Subsidiary is required under the Foreign Business Act B.E. 2542 (1999), 5.19(a)as amended, 5.19(b)to obtain a Thai Guarantee License) and (ii) a BOT Approval in Principle. For the avoidance of doubt, 5.20(c)in no event shall an Excluded Subsidiary be required to become a Guarantor. Notwithstanding anything to the contrary in any Loan Document, and 5.20(d)in no event will any Subsidiary that is a “controlled foreign corporation” within the meaning of Section 957 of the Code be required to, or to continue to, guarantee any Obligations of a Designated Borrower that is a Subsidiary organized under any political subdivision of the United States, nor shall stock of such CFC in excess of 65% be, or continue to be, pledged as security with respect to such Obligations, if there exists one or more “U.S. shareholders” within the meaning of Section 951(b) of the Code that could be required to include any amount in income under Section 951(a) in connection with such guarantee or pledge.

Covenant to Guarantee Obligations. The Loan Parties will cause Upon the formation or acquisition by the Borrower of any new direct or indirect Restricted Subsidiary that is a Domestic Subsidiary or the designation of a previously Unrestricted Subsidiary as a Restricted Subsidiary that is a Domestic Subsidiary pursuant to Section 5.02(r), the Borrower shall, in each of their Material Subsidiaries whether newly formed, after acquired or otherwise existing to promptly case at the Borrower’s expense (and in any event i) within thirty (30) 20 days after such formation, acquisition or designation (or, if at the time of (A) formation or acquisition, such Restricted Subsidiary is shall not constitute a New Material Subsidiary or (B) designation, such Restricted Subsidiary would not constitute a New Material Subsidiary if newly-formed or newly-acquired, then within 20 days after the first date on which (I) such newly-formed or newly-acquired Restricted Subsidiary shall constitute a New Material Subsidiary, (II) such newly-designated Restricted Subsidiary would constitute a New Material Subsidiary if newly-formed or newly-acquired or otherwise becomes a Material Subsidiary (III) the total assets of such newly-formed, newly-acquired or such longer period of time as agreed to by the Administrative Agent in its reasonable discretion)) become a Guarantor hereunder by way of execution of a Joinder Agreement; provided that (a) no Foreign Subsidiary shall be required to become a Guarantor to the extent (i) such Guaranty would result in a material adverse tax or regulatory consequence for any Loan Party or any of its Subsidiaries or (ii) a material impediment to such Foreign Subsidiary becoming a Guarantor (including, without limitation, repatriation limitations) exists under the Laws governing such Foreign newly-designated Restricted Subsidiary and (b) the Loan Parties shall designate one or more all other Domestic Subsidiaries (other than Foreign Subsidiaries subject to clause (a) above) as Material Subsidiaries and cause such Subsidiaries to become Guarantors and take such additional actions of the type described below in this Section to the extent necessary to cause the Obligations of the Borrower that are not Subsidiary Guarantors, as reflected on their respective balance sheets as of any date of determination, shall be greater than or equal to be guaranteed by, and secured by the assets of Subsidiaries that, together with the Borrower, account for at least ten percent (i10%) 90% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as reflected on a Consolidated basis (calculated the Borrower’s consolidated balance sheet as of the last day such date of the Measurement Period most recently ended on or before such datedetermination, in each case as determined in accordance with GAAP), cause each such Restricted Subsidiary, to duly execute and deliver to the Administrative Agent a guaranty or such lesser amount as may be represented by all operating Domestic Subsidiaries guaranty supplement, in the form of Exhibit D hereto in the Borrower case of a guaranty, and otherwise in form and substance reasonably satisfactory to the Administrative Agent in the case of a supplement, guaranteeing the other Loan Parties’ Obligations under the Loan Documents and (ii) 90% of the revenue of the Borrower at any time and its Subsidiaries on a Consolidated basis (calculated for the Measurement Period most recently ended on or before from time to time, promptly execute and deliver any and all further instruments and documents and take all such date) or such lesser amount as may be represented by all operating Domestic Subsidiaries of the Borrower. For purposes of the foregoing calculations, (x) assets shall be determined as of the last day of the most recently ended fiscal quarter for which financial information is available, (y) revenues shall be determined on a Pro Forma Basis using the results of the Measurement Period of the Borrower most recently ended for which financial information is available, Alliance Resource Third Amended and (z) the assets and revenues of a Subsidiary shall not be deemed to include the assets and revenue of its Subsidiaries. In connection therewith, the Loan Parties shall give notice to the Administrative Agent not less than ten (10) days prior to creating a Material Subsidiary (or such later date as agreed to by the Administrative Agent in its reasonable discretion), or acquiring the Equity Interests of any Restated Credit Agreement other Person who is a Material Subsidiary. In connection with the foregoing, the Loan Parties shall deliver to the Administrative Agent, with respect to each new Guarantor to the extent applicable, substantially the same documentation required pursuant to Sections 4.01(b) – (f), (k) and 6.13 and such other documents or agreements action as the Administrative Agent may reasonably requestdeem necessary or desirable in obtaining the full benefits of such guaranties. Notwithstanding anything to the contrary contained in this Section 5.01(i) or any other Loan Document, the Borrower shall not be required to cause any Receivables Financing Subsidiary to join or become a party to, or otherwise become bound by, any guaranty (including without limitation, updated Schedules 1.01(c), 5.19(a), 5.19(b), 5.20(c), and 5.20(d)the Subsidiary Guaranty) guaranteeing the other Loan Parties’ Obligations under the Loan Documents.

Covenant to Guarantee Obligations. The Loan Parties Except in respect of Fabrinet Thailand, for which the provisions of Section 6.18(a) shall govern exclusively, the Borrower will cause each of their its Material Subsidiaries (other than any Excluded Subsidiary) whether newly formed, after acquired or otherwise existing existing, to promptly (and in any event within thirty (30) days after such Material Subsidiary (other than any Excluded Subsidiary) is formed or acquired or otherwise becomes a Material Subsidiary (or such longer period of time as agreed to by the Administrative Agent in its reasonable discretion)) become a Guarantor hereunder by way of execution of a Joinder Agreement; provided that in the case of any Thai Material Subsidiary that is required under the Foreign Business Act B.E. 2542 (a) no Foreign Subsidiary shall be required 1999), as amended, to obtain a Thai Guarantee License in order to become a Guarantor to hereunder, the extent (i) Guaranty of such Guaranty would result in Thai Material Subsidiary shall not be effective until such Thai Material Subsidiary shall have obtained a material adverse tax or regulatory consequence for any Loan Party or any of its Subsidiaries or (ii) a material impediment to such Foreign Subsidiary becoming a Guarantor (including, without limitation, repatriation limitations) exists under the Laws governing such Foreign Subsidiary Thai Guarantee License and (b) the Loan Parties shall designate one or more Subsidiaries (other than Foreign Subsidiaries subject to clause (a) above) as Material Subsidiaries and cause such Subsidiaries to become Guarantors and take such additional actions of the type described below in this Section to the extent necessary to cause the Obligations of the Borrower to be guaranteed by, and secured by the assets of Subsidiaries that, together with the Borrower, account for at least (i) 90% of the total assets each of the Borrower and the relevant Thai Material Subsidiary shall use its Subsidiaries on best efforts to promptly obtain the Thai Guarantee License (and the time period for such Thai Material Subsidiary to become a Consolidated basis (calculated as of the last day of the Measurement Period most recently ended on or before such date), or such lesser amount as may be represented by all operating Domestic Subsidiaries of the Borrower and (ii) 90% of the revenue of the Borrower and its Subsidiaries on a Consolidated basis (calculated for the Measurement Period most recently ended on or before such date) or such lesser amount as may be represented by all operating Domestic Subsidiaries of the Borrower. For purposes of the foregoing calculations, (x) assets Guarantor hereunder shall be determined as automatically extended to permit the Thai Material Subsidiary to obtain such Thai Guarantee License and satisfy the other requirements of the last day of the most recently ended fiscal quarter for which financial information is available, (y) revenues shall be determined on a Pro Forma Basis using the results of the Measurement Period of the Borrower most recently ended for which financial information is available, and (z) the assets and revenues of a Subsidiary shall not be deemed to include the assets and revenue of its Subsidiariesthis Section 6.13). In connection therewith, the Loan Parties Borrower shall give notice to the Administrative Agent not less than ten five (105) days prior to creating a Material Subsidiary (or such later date shorter period of time as agreed to by the Administrative Agent in its reasonable discretion), ) prior to creating or acquiring the Equity Interests of any other Person who is a Material Subsidiary (which such notice shall include, as applicable, notice that such Material Subsidiary shall constitute an Excluded Subsidiary). In connection with the foregoingJoinder Agreement and concurrently therewith, the Loan Parties Borrower shall deliver to the Administrative Agent, with respect to each new Guarantor Guarantor, to the extent applicable, (a) substantially the same documentation required pursuant to Sections 4.01(b) – (f)) and 6.14, (kb) such updates to the Disclosure Letter as may be necessary with respect to such Guarantor and 6.13 and (c) such other documents or agreements as the Administrative Agent may reasonably request; provided that in the case of any Thai Material Subsidiary, including without limitation, updated Schedules 1.01(csuch Thai Material Subsidiary shall also promptly deliver to the Administrative Agent certified copies of (i) a Thai Guarantee License (to the extent that such Thai Material Subsidiary is required under the Foreign Business Act B.E. 2542 (1999), 5.19(a)as amended, 5.19(b)to obtain a Thai Guarantee License) and (ii) a BOT Approval in Principle. For the avoidance of doubt, 5.20(c), and 5.20(d)in no event shall an Excluded Subsidiary be required to become a Guarantor.