Common use of Designation of Restricted and Unrestricted Subsidiaries Clause in Contracts

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 or represent Permitted Investments, as determined by Holdings. That designation shall only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.03, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board All of Directors of Holdings may designate the Corporation’s existing Wholly-Owned Subsidiaries shall be “Restricted Subsidiaries” and any Restricted future Wholly-Owned Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause Corporation shall become a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Restricted Subsidiary” are satisfied. If as at such time that it becomes a Restricted Wholly-Owned Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 or represent Permitted Investments, as determined by Holdings. That designation shall only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets the definition of an Unrestricted SubsidiaryCorporation. The Board of Directors of Holdings may at the Corporation shall not be permitted to designate any time existing or future Wholly-Owned Subsidiary of the Corporation as an “Unrestricted Subsidiary”. However, the Board of Directors of the Corporation shall be permitted to (1) designate any Unrestricted Subsidiary of Holdings to be or any Subsidiary that is not a Wholly-Owned Subsidiary as a “Restricted Subsidiary of HoldingsSubsidiary”, provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any in an amount equal to the outstanding Indebtedness of such Unrestricted Subsidiary or Subsidiary that is not a Wholly-Owned Subsidiary, as applicable, and such designation will shall only be permitted if (1a) such Indebtedness is permitted under Section 8.035.7, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2b) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation, or (2) subject to the first paragraph of Section 5.7, designate any Restricted Subsidiary that is not a Wholly-Owned Subsidiary as an “Unrestricted Subsidiary” if, as at the time of such designation, (a) such designation would not cause a Default, and (b) after giving pro forma effect to such designation, (i) the sum, without duplication, of the EBITDA of the Corporation’s Unrestricted Subsidiaries, would not be greater than 10% of the EBITDA of the Corporation and its Subsidiaries, on a consolidated basis, and (ii) the sum, without duplication, of the total assets of the Corporation’s Unrestricted Subsidiaries, would not be greater than 10% of the total assets of the Corporation and its Subsidiaries, on a consolidated basis, all as shown on the most recent internal income statement and balance sheet of the Corporation; provided, however, that upon such designation the aggregate Fair Market Value of all outstanding Investments owned by the Corporation and its Restricted Subsidiaries in such Restricted Subsidiary shall be deemed to be an Investment made as of the time of the designation and shall reduce the amount available for Restricted Payments under Section 5.6 or under one or more clauses of the definition of “Permitted Investments”, as determined by the Corporation, and provided further that such designation shall only be permitted if the Investment would be permitted at that time and if such Restricted Subsidiary that is not a Wholly-Owned Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. Any designation of a Restricted Subsidiary as an Unrestricted Subsidiary shall be evidenced to the Trustees by filing with the Trustees a certified copy of a resolution of the Board of Directors of the Corporation giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted under Section 5.6. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Unrestricted Subsidiary shall be deemed to be incurred by a Restricted Subsidiary as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 5.7, the Corporation shall be in default of such Section 5.7. Mediative G.P. Inc. and Mediative Performance L.P. shall be treated as “Unrestricted Subsidiaries” from and after the date of this Indenture. In the event Mediative G.P. Inc. and Mediative Performance L.P. become Wholly-Owned Subsidiaries of the Corporation, Mediative G.P. Inc. and Mediative Performance L.P. will, at such time, become Restricted Subsidiaries.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings MagnaChip may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default Default; provided that in no event will the business currently operated by MagnaChip Semiconductor Ltd. be transferred to or Event of Default and the other requirements for such designation prescribed in the definition of “held by an Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings MagnaChip and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by HoldingsMagnaChip. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings MagnaChip may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of MagnaChip as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of MagnaChip as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, MagnaChip will be in default of such Section. The Board of Directors of MagnaChip may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, MagnaChip; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings MagnaChip of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence and be continuing following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default Default; provided that in no event will the business currently operated by the Issuer be transferred to or Event of Default and the other requirements for such designation prescribed in the definition of “held by an Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Restricted Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the such Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Company, Xxxxxxx Corp. or a Subsidiary of Xxxxxxx Corp. as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Unrestricted Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrowerincluding any newly acquired or newly formed Subsidiary or Person that becomes a Subsidiary through merger or consolidation or Investment therein) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under ‎Section 4.07(a) hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by ‎Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under ‎Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.03‎Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Company’s Board of Directors of Holdings may designate any Restricted of its Subsidiaries, including any newly formed Subsidiary or any Person that will become a Subsidiary by way of Holdings (other than the Borrower) acquisition, to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a any of the Company’s Restricted Subsidiary of Holdings Subsidiaries is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly newly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made as of the time of the that designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 4.10(a) or represent “Permitted Investments, ,” as determined by Holdingsthe Company. That The designation shall only of such a Subsidiary or Person as an “Unrestricted Subsidiary” will be permitted if only if, in the case of a Restricted Subsidiary, the deemed Investment would be permitted at the time the Restricted Subsidiary is designated as an Unrestricted Subsidiary and, in any case, if that time and if Subsidiary or Person otherwise satisfies the Subsidiary so designated otherwise meets requirements set forth in the definition of “Unrestricted Subsidiary.” Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of the Board Resolution giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.10 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors of Holdings the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a one of the Company’s Restricted Subsidiary of Holdings Subsidiaries of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Wynn Capital may designate any Restricted Subsidiary of Holdings (Subsidiary, other than the Borrower) Xxxx Capital, to be an Unrestricted Subsidiary of Xxxx Las Vegas if that designation would not cause a Default or an Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings Xxxx Las Vegas is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings Xxxx Las Vegas and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made in an Unrestricted Subsidiary as of the time of the designation and will shall reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 4.07 hereof or represent Permitted Investments, as determined by HoldingsXxxx Las Vegas. That designation shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated of Xxxx Las Vegas otherwise meets the definition of an “Unrestricted Subsidiary.” The Board of Directors of Xxxx Capital may redesignate any Unrestricted Subsidiary of Xxxx Las Vegas to be a Restricted Subsidiary of Xxxx Las Vegas if the redesignation would not cause a Default or an Event of Default. Any designation of a Subsidiary of Xxxx Las Vegas as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of Xxxx Las Vegas as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, Xxxx Las Vegas shall be in default of such covenant. The Board of Directors of Holdings Xxxx Capital may at any time designate redesignate any Unrestricted Subsidiary of Holdings Xxxx Las Vegas to be a Restricted Subsidiary of Holdings, Xxxx Las Vegas; provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings Xxxx Las Vegas of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will shall only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default Default; provided that in no event will the business currently comprised of the Slot Route Operations or Event of Default Terrible’s Hotel and the other requirements for such designation prescribed in the definition of “Casino be transferred to or held by an Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof the Company will be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.03, 4.09 hereof calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrowerincluding any newly acquired or newly formed Subsidiary or Person that becomes a Subsidiary through merger or consolidation or Investment therein) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made as of the time of the designation and will shall reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will shall only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. As of the Issue Date, all of the Subsidiaries of the Company will be Restricted Subsidiaries. The Board of Directors of Holdings may will be able, at any time after the Issue Date, to designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if Subsidiary; provided, that designation would not cause a immediately before and after such designation, no Default or Event of Default shall have occurred and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedbe continuing. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Restricted Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments permitted under the first paragraph of Section 8.01 or represent Permitted Investments, as determined by Holdings4.12. That designation shall will only be permitted if the Investment would be permitted at that time and if the such Restricted Subsidiary so designated otherwise meets the definition of an “Unrestricted Subsidiary.” Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors or a committee thereof giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.12. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary and any Indebtedness of such Unrestricted Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.10, the Company will be in Default of Section 4.10. The Board of Directors of Holdings may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and the creation, incurrence, assumption or otherwise causing to exist any Lien of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.10, calculated on a pro forma basis as if such designation had occurred at the beginning of the relevant four-quarter reference period, and ; (2) such Lien is permitted; and (3) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Company giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted under Section 4.07 and that the resolution of the Board of Directors of the Company giving effect to such designation is a true, complete and correct copy of the resolutions of the Board of Directors giving effect to such designation and that such resolutions have not been amended, modified, revoked or rescinded and are in full force and effect on the date thereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09, the Company will be in default of such covenant. The Board of Directors of Holdings the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.03, 4.09 calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable four-quarter reference period, period and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted (after giving effect to any sale of Equity Interests of such Subsidiary in connection with such designation) will be deemed to be an Investment made as of the time of the designation and will either reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would no longer meet the preceding requirements for designation as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 or represent Permitted Investments, as determined by Holdingsdesignation. That designation shall will only be permitted if the Investment would be permitted at that time under Section 4.07 and if the Restricted Subsidiary so designated otherwise meets the definition of an “Unrestricted Subsidiary.” The Board of Directors of the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions. The Board of Directors of Holdings the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted only if (1a) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, period and (2b) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Issuer may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, (i) the aggregate Fair Market Value of all outstanding Investments owned by Holdings Issuer and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph covenant described above under the caption “—Restricted payments” or under one or more clauses of Section 8.01 or represent the definition of Permitted Investments, as determined by HoldingsIssuer in its discretion, and (ii) any Guarantee by Issuer or any Restricted Subsidiary thereof of any Indebtedness of the Restricted Subsidiary being so designated will be deemed to be an incurrence of Indebtedness by Issuer or such Restricted Subsidiary (or both, if applicable) at the time of such designation. That designation shall will only be permitted if the Investment and/or incurrence of Indebtedness would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings Issuer may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of Issuer as an Unrestricted Subsidiary will be evidenced to the trustee by filing with the trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an officers' certificate certifying that such designation complied with the preceding conditions and was permitted by the covenant described above under the caption “—Restricted payments.” The Board of Directors of Issuer may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Issuer; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.03, the covenant described under the caption “—Incurrence of indebtedness and issuance of preferred stock,” calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following following, and as a result of, such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Parent may designate any Restricted Subsidiary of Holdings (other than including any newly acquired or newly formed Subsidiary or Person that becomes a Subsidiary through merger or consolidation or Investment therein but excluding the BorrowerCompany) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Parent and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07(a) hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Parent. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Parent may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Parent as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Parent as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Parent will be in default of such covenant. The Board of Directors of Parent may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Parent; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Parent of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Parent may designate any Restricted Subsidiary of Holdings (other than the a Borrower) to be as an Unrestricted Subsidiary if or any Unrestricted Subsidiary as a Restricted Subsidiary; provided, that designation would not cause a (i) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing, (ii) the other requirements for Group shall be in compliance with the financial covenant set forth in Section 6.07 (whether or not then tested) on a pro forma basis after giving effect to such designation prescribed in as of the definition last day of “Unrestricted Subsidiary” are satisfied. If a the Fiscal Quarter most recently ended and (iii) no Restricted Subsidiary of Holdings is may be designated as an Unrestricted Subsidiary, Subsidiary if it was previously designated as an Unrestricted Subsidiary pursuant to this Section 5.19. The designation of any Restricted Subsidiary as an Unrestricted Subsidiary shall constitute an Investment equal to the aggregate Fair Market Value fair market value of all outstanding Investments owned by Holdings the Parent and its the Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 or represent Permitted Investmentsdesignation, as determined by Holdingsthe Parent. That Such designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated 133 otherwise meets the definition of an Unrestricted Subsidiary. The Board designation of Directors of Holdings may at any time designate any Unrestricted Subsidiary of Holdings to be as a Restricted Subsidiary shall constitute (i) the incurrence at the time of Holdingsdesignation of any Investment, provided that Indebtedness or Liens of such Subsidiary existing at such time and (ii) a return on any Investment by the applicable Loan Party in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value at the date of such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Loan Party’s Investment in such Subsidiary. Notwithstanding the foregoing (i) no Borrower may be designated as an Unrestricted Subsidiary and (ii) no Person may be designated as an “Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.03, calculated on a pro forma basis as ” if such designation had occurred at Person is not an “Unrestricted Subsidiary” or is a “Guarantor” under any Senior Notes, the beginning of Senior Secured Notes, the four-quarter reference periodSenior Refinancing Notes or under any agreement, and (2) no Default (other than a Reporting Default) document or Event of Default would be in existence following such designationinstrument evidencing any Material Indebtedness.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Xxxx Capital may designate any Restricted Subsidiary of Holdings (Subsidiary, other than the Borrower) Xxxx Capital, to be an Unrestricted Subsidiary of Xxxx Las Vegas if that designation would not cause a Default or an Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings Xxxx Las Vegas is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings Xxxx Las Vegas and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made in an Unrestricted Subsidiary as of the time of the designation and will shall reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 4.07 hereof or represent Permitted Investments, as determined by HoldingsXxxx Las Vegas. That designation shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated of Xxxx Las Vegas otherwise meets the definition of an “Unrestricted Subsidiary.” The Board of Directors of Wynn Capital may redesignate any Unrestricted Subsidiary of Xxxx Las Vegas to be a Restricted Subsidiary of Xxxx Las Vegas if the redesignation would not cause a Default or an Event of Default. Any designation of a Subsidiary of Xxxx Las Vegas as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of Xxxx Las Vegas as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, Xxxx Las Vegas shall be in default of such covenant. The Board of Directors of Holdings Xxxx Capital may at any time designate redesignate any Unrestricted Subsidiary of Holdings Xxxx Las Vegas to be a Restricted Subsidiary of Holdings, Xxxx Las Vegas; provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings Xxxx Las Vegas of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will shall only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, (i) the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company and (ii) any Guarantee by the Company or any Restricted Subsidiary thereof of any Indebtedness of the Restricted Subsidiary being so designated will be deemed to be an incurrence of Indebtedness by the Company or such Restricted Subsidiary (or both, if applicable) at the time of such designation. That designation shall will only be permitted if the Investment and/or incurrence of Indebtedness would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Supplemental Indenture, any Investments made in such Subsidiary will be deemed to be an Investment made in a Restricted Subsidiary of the Company as of such date (and increase the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by the Company), and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board board of Directors of Holdings directors may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by Holdings Sunburst and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 the covenant described above under the caption "--Restricted Payments" or represent Permitted Investments, as determined by HoldingsSunburst. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board board of Directors of Holdings directors may at any time designate redesignate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary if the redesignation would not cause a Default. Limitation on Issuances and Sales of HoldingsEquity Interests in Wholly Owned Restricted Subsidiaries Sunburst will not, provided that such designation and will be deemed to be an incurrence not permit any of Indebtedness by a its Restricted Subsidiaries to, transfer, convey, sell, lease or otherwise dispose of any Equity Interests in any Wholly Owned Restricted Subsidiary of Holdings of Sunburst to any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.03, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (2) no Default Person (other than Sunburst or a Reporting Default) or Event Wholly Owned Restricted Subsidiary of Default would be in existence following such designation.Sunburst), unless:

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Xxxx Capital may designate any Restricted Subsidiary of Holdings (Subsidiary, other than the Borrower) Xxxx Capital, to be an Unrestricted Subsidiary of Xxxx Las Vegas if that designation would not cause a Default or an Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings Xxxx Las Vegas is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings Xxxx Las Vegas and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made in an Unrestricted Subsidiary as of the time of the designation and will shall reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 4.07 hereof or represent Permitted Investments, as determined by HoldingsXxxx Las Vegas. That designation shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated of Xxxx Las Vegas otherwise meets the definition of an “Unrestricted Subsidiary.” The Board of Directors of Xxxx Capital may redesignate any Unrestricted Subsidiary of Xxxx Las Vegas to be a Restricted Subsidiary of Xxxx Las Vegas if the redesignation would not cause a Default or an Event of Default. Any designation of a Subsidiary of Xxxx Las Vegas as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of Xxxx Las Vegas as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, Xxxx Las Vegas shall be in default of such covenant. The Board of Directors of Holdings Xxxx Capital may at any time designate redesignate any Unrestricted Subsidiary of Holdings Xxxx Las Vegas to be a Restricted Subsidiary of Holdings, Xxxx Las Vegas; provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings Xxxx Las Vegas of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will shall only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, Reference Period; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. As of the Issue Date, all of the Subsidiaries of the Company are listed on Schedule IV (Existing Subsidiaries) hereto. The Board of Directors of Holdings Company may at any time after the Issue Date (a) designate any Restricted Subsidiary of Holdings (other than that is not the Borrower) Company, a Guarantor, a Securitization Entity or a “Loan Party” under the Senior Credit Agreement to be an Unrestricted Subsidiary if and (b) redesignate any Unrestricted Subsidiary as a Restricted Subsidiary; provided, that, in the case of a designation of a Restricted Subsidiary as an Unrestricted Subsidiary, (i) such entity is designated by the Board of Directors, (ii) such entity and its Subsidiaries do not hold any Indebtedness that designation would is recourse to the Company or any Restricted Subsidiary, (iii) such entity and its Subsidiaries do not cause a own any Capital Stock, are not an obligor under any Indebtedness of, and do not own or hold any Lien on any property of, the Company or any other Subsidiary of the Company and (iv) no Default or Event of Default has occurred and the other requirements for is continuing or would be caused after giving effect to such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfieddesignation. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the such Restricted Subsidiary properly designated as an Unrestricted Subsidiary and its Subsidiaries will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments pursuant to Section 7.12 or under one or more clauses of the first paragraph definition of Section 8.01 or represent “Permitted Investments, ,” as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted under the Indenture at that time of such designation and if the such Restricted Subsidiary so designated otherwise meets the definition of an “Unrestricted Subsidiary.” The Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 7.12. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness and Liens of such Unrestricted Subsidiary will be deemed to be incurred by a Restricted Subsidiary as of such date and, if such Indebtedness and Liens are not permitted to be incurred as of such date under Section 7.13 and Section 7.15, respectively, the Company will be in default of such covenants. The Board of Directors of Holdings may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of HoldingsSubsidiary, provided that that, in the case of a re-designation of an Unrestricted Subsidiary as a Restricted Subsidiary, (i) such re-designation will be deemed to be an incurrence of Indebtedness and Liens by a Restricted Subsidiary of Holdings of any outstanding Indebtedness and Liens of such Unrestricted Subsidiary, and such re-designation will only be permitted if (1) such Indebtedness is permitted under Section 8.037.13 and Section 7.15, calculated on a pro forma basis as if such re-designation had occurred at the beginning of the four-quarter reference period, period referred to in such Section and (2ii) no Default (other than a Reporting Default) or Event of Default has occurred and is continuing or would be in existence following caused thereby after giving effect to such re-designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Issuer may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by Holdings the Issuer and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments as described in Section 3.3 or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Issuer. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. Any designation of a Subsidiary of the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a resolution of the Board of Directors of the Issuer giving effect to such designation and an Officer’s Certificate certifying that such designation complies with the preceding conditions and was permitted by Section 3.3, other than Section 3.3(b)(16). If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be Incurred by a Restricted Subsidiary of the Issuer as of such date and, if such Indebtedness is not permitted to be Incurred as of such date by Section 3.2 herein, the Issuer will be in default of Section 3.2. The Board of Directors of Holdings the Issuer may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Issuer; provided that such designation will be deemed to be an incurrence Incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.033.2, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following before or after such designation. Any such designation by the Board of Directors of the Issuer shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Issuer giving effect to such designation and an Officer’s Certificate certifying that such designation complies with the preceding conditions.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Issuer may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that such designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Issuer and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the first paragraph definition of Section 8.01 or represent “Permitted Investments, ,” as determined by Holdingsthe Issuer. That Such designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an “Unrestricted Subsidiary.” The Issuer may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default. Any designation of a Subsidiary of the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture, and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Issuer as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09, the Issuer will be in default under Section 4.09. The Board of Directors of Holdings Issuer may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Issuer; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable four-quarter reference period, and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available either for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company in its sole discretion. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Company giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof or was a Permitted Investment under one or more of the clauses of the definition of Permitted Investments. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Supplemental Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings may designate any Restricted Subsidiary of Holdings (other than the Borrower) that is not a Significant Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary properly so designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of Restricted Payments at the time of such designation (to the designation extent not designated a Permitted Investment) and will reduce the amount available for Restricted Payments under Section 4.07 hereof. All such outstanding Investments will be valued at their Fair Market Value at the first paragraph time of Section 8.01 or represent Permitted Investmentssuch designation, as determined in good faith by Holdingsthe Board of Directors. That designation shall will only be permitted if the Investment such Restricted Payment would be permitted at that time and if the such Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of Holdings a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of the resolutions of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date by Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under by Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the such Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company; provided that the amount of any Restricted Payment resulting from the designation of a Development Subsidiary as an Unrestricted Subsidiary shall be equal to the sum of (a) the book value as of September 30, 2006 of the real property held by the Company or any of its Restricted Subsidiaries on the date of this Indenture and held by or contributed to such Subsidiary at the time of such designation and (b) the fair market value of all other Investments made by the Company and its Restricted Subsidiaries in such Subsidiary at the time of such Investments, net of any dividend or any other payment or distribution to the Company or any of its Restricted Subsidiaries at the time of or in connection with such designation (provided that any such dividends, other payments or distributions applied in such calculation pursuant to this clause (b) shall be excluded from clauses (3)(C) and (3)(E) of Section 4.07 hereof). That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings may at any time re-designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, provided that such if the re-designation will be deemed to be an incurrence of Indebtedness by would not cause a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.03, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and Default; provided that in no event may the other requirements for such designation prescribed in business currently operated by the definition of “Company be transferred to or held by an Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 3.9(a) hereof or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall may only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may at any time designate or redesignate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary if the designation or redesignation would not cause a Default or Event of HoldingsDefault. If an Unrestricted Subsidiary is designated as a Restricted Subsidiary, provided that the aggregate principal amount of all outstanding Indebtedness of such designation will be deemed to Unrestricted Subsidiary shall be an incurrence of Indebtedness by a Restricted Subsidiary as of Holdings of any outstanding Indebtedness the date of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under which must comply with Section 8.03, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation3.10 hereof.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default Default; provided that in no event will the business currently operated by Gibraltar Mines Ltd. be transferred to or Event of Default and the other requirements for such designation prescribed in the definition of “held by an Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.04 of this First Supplemental Indenture or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company. 40 That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustees by filing with the Trustees a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.04 of this First Supplemental Indenture. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this First Supplemental Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.06 of this First Supplemental Indenture, the Company will be in default of such Section. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.03, 4.06 of this First Supplemental Indenture calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the BorrowerU.S. Co-Issuer) of the Company to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings the Company is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made as of the time of the designation and will shall reduce the amount Cumulative Buildup Basket or amounts available for Restricted Payments under one or more clauses of the first paragraph definition of Permitted Investments or one or more clauses of Section 8.01 or represent Permitted Investments, 4.07(b) as determined by Holdingsthe Company. That designation shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may at any time designate redesignate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, provided if that such designation will be deemed to be an incurrence of Indebtedness by redesignation would not cause a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, Default and such designation will only be permitted if either: (1) the Company could incur at least $1.00 of additional Indebtedness pursuant to Section 4.09(a) or (2) the Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries would be greater than or equal to such ratio for the Company and its Restricted Subsidiaries immediately prior to such designation, or (3) the Indebtedness is permitted under Section 8.03to Tangible Net Worth Ratio for the Company and its Restricted Subsidiaries would be less than or equal to such ratio for the Company and its Restricted Subsidiaries immediately prior to such designation, calculated in each case on a pro forma basis taking into account such redesignation. Any designation of a Subsidiary of the Company as if an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Company giving effect to such designation had occurred at and an Officers’ Certificate certifying that such designation complied with the beginning of the four-quarter reference period, preceding conditions and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designationwas permitted by Section 4.07.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Inmarsat Group Limited may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default Default; provided that in no event shall the business currently operated by any of the Issuer, Inmarsat Investments Limited, Inmarsat Ventures Limited, Inmarsat Ltd (UK), Inmarsat Leasing (Two) Ltd and Inmarsat Launch Company Limited be transferred to or Event of Default and the other requirements for such designation prescribed in the definition of “held by an Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings Inmarsat Group Limited and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by HoldingsInmarsat Group Limited. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings Inmarsat Group Limited may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of Inmarsat Group Limited as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee on the effective date of such designation a certified copy of the Board Resolution giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of Inmarsat Group Limited as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, Inmarsat Group Limited will be in default of such covenant. The Board of Directors of Inmarsat Group Limited may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings Inmarsat Group Limited of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, period and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) Company to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings the Company is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 3 of this Annex or under one or more clauses of the first paragraph definition of Section 8.01 or represent “Permitted Investments, ,” as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Collateral Agent by filing with the Collateral Agent a certified copy of a resolution of the Board of Directors of the Company giving effect to such designation and an officers’ certificate certifying that such designation complied with the preceding conditions and was permitted by Section 3 of this Annex. The Board of Directors of Holdings the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.032 of this Annex, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would occur and be in existence continuing following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Issuer may after the Issue Date designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted SubsidiarySubsidiary after the Issue Date, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Issuer and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to either be an Investment made as a “Restricted Payment” as of the time of the designation and that will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 4.07(a) or represent a Permitted Investment under one or more clauses of the definition of “Permitted Investments, ,” as determined in good faith by Holdingsthe Issuer. That designation shall will only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets the definition of an “Unrestricted Subsidiary.” Any designation of a Subsidiary of the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07. The Board of Directors of Holdings Issuer may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Issuer; provided that such designation will be deemed to be an incurrence of Indebtedness and Liens by a Restricted Subsidiary of Holdings the Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09, with the Fixed Charge Coverage Ratio calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, and ; (2) such Indebtedness is permitted under Section 4.12; and (3) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness and Liens of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Issuer as of such date and, if such Indebtedness or Liens are not permitted to be incurred as of such date under Sections 4.09 and/or 4.12, the Issuer will be in default of Section 4.09 and/or Section 4.12, as applicable.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the BorrowerIssuer (or any successor to the Issuer) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a copy of a resolution of the Company’s Board of Directors giving effect to such designation and an Officer’s Certificate certifying that such designation complies with the preceding conditions and was permitted by Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09, the Company will be in default of such covenant. The Board of Directors of Holdings the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors of Holdings may designate any Restricted Subsidiary of Holdings (other than the BorrowerSignificant Guarantors) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 or represent Permitted Investments, as determined by Holdingsdesignation. That designation shall only will be permitted only if the Investment would be permitted at that time under Section 4.6 and if the Restricted Subsidiary so designated otherwise meets the definition of an “Unrestricted Subsidiary.” (b) Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the preceding conditions. The Board of Directors of Holdings may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted only if (1) such Indebtedness is permitted under Section 8.034.7, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.. (c) As of the Closing Date, each of Sunseeker Resorts, Inc., Sunseeker Florida, Inc., Point Charlotte Development, LLC and Point Charlotte, LLC will be an Unrestricted Subsidiary. Section 4.11. Transactions with Affiliates (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any 66

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Inmarsat Holdings Limited may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default Default; provided that in no event shall the business currently operated by any of the Issuer, Inmarsat Group Limited, Inmarsat Investments Limited, Inmarsat Ventures Limited, Inmarsat Ltd (UK), Inmarsat Leasing (Two) Ltd and Inmarsat Launch Company Limited be transferred to or Event of Default and the other requirements for such designation prescribed in the definition of “held by an Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Inmarsat Holdings Limited and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by HoldingsInmarsat Holdings Limited. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Inmarsat Holdings Limited may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of Inmarsat Holdings Limited as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee on the effective date of such designation a certified copy of the Board Resolution giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of Inmarsat Holdings Limited as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, Inmarsat Holdings Limited will be in default of such covenant. The Board of Directors of Inmarsat Holdings Limited may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Inmarsat Holdings Limited of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, period and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any of its Restricted Subsidiary of Holdings (other than the Borrower) Subsidiaries to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such if that designation prescribed in otherwise is consistent with the definition of “an Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made as of the time of the designation and will either reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 4.10 or represent be a Permitted InvestmentsInvestment, as determined by Holdingsthe Company; provided that no designation of an Unrestricted Subsidiary may be made in reliance on 4.10(b)(6). That Such designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Company giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.10. If, at any time, any Unrestricted Subsidiary would fail to meet the requirements of an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture, and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09, the Company will be in default of Section 4.09 unless such Unrestricted Subsidiary is made to meet such requirements. The Board of Directors of Holdings the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness and Liens of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is and Liens are permitted under Section 8.03Sections 4.09 and 4.11, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made as of the time of the designation and will shall reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default and either: (1) the Issuers could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test described in Section 4.09(a) or (2) the Fixed Charge Coverage Ratio for the Issuers and the Restricted Subsidiaries would be greater than such ratio for the Issuers and the Restricted Subsidiaries immediately prior to such designation, in each case on a pro forma basis taking into account such designation. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Company giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09, the Company shall be in Default of Section 4.09. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will shall only be permitted if (1) such Indebtedness is permitted under Section 8.03, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, 4.09 and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default Default; provided that in no event will the business currently operated by the Hungarian Subsidiary be transferred to or Event of Default and the other requirements for such designation prescribed in the definition of “held by an Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1i) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma proforma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2ii) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Parent may designate any Restricted Subsidiary of Holdings (other than the BorrowerCompany) (including any newly acquired or newly formed Subsidiary or Person becoming a Subsidiary through merger, consolidation or amalgamation or Investment therein) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Parent and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 5.07 or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Parent. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Parent may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Parent as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Parent giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 5.07. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Parent as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 5.09, the Parent will be in default of such covenant. The Board of Directors of the Parent may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Parent; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Parent of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.035.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors of Holdings Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or an Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by Holdings and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments pursuant to Section 7.06 or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. Notwithstanding the foregoing, no Subsidiary designated an Unrestricted Subsidiary shall own any Material Intellectual Property. (b) Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Administrative Agents by an Officer’s Certificate certifying that such designation complies with the preceding conditions and was permitted by Section 7.06. (c) The Board of Directors of Holdings Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.037.03 (including pursuant to Section 7.03(b)(v) treating such redesignation as an acquisition for the purpose of such clause (v)), calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.. Any 165 #95598837v24

Designation of Restricted and Unrestricted Subsidiaries. The As long as no Default (other than a Reporting Default) or Event of Default has occurred and is continuing, the Board of Directors of Holdings the Company may designate any Restricted newly-formed Subsidiary of Holdings (other than the Borrower) Company or any Subsidiary of the Company acquired after the date of the indenture pursuant to an Acquisition permitted under the provisions governing Restricted Payments and Permitted Investments to be an Unrestricted Subsidiary if if, in either case, that designation would not cause a Default or Event of Default and the other requirements for Default. Any such designation prescribed shall be made on or promptly after the date such Subsidiary becomes a Subsidiary of the Company (and, in any case, within 30 days of the definition of “Unrestricted Subsidiary” are satisfiedformation or acquisition thereof). If a Restricted Subsidiary of Holdings the Company is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be either an Investment made as of the time of the designation and that will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 the covenant described above under the caption “Restricted Payments” or represent (and will reduce the amount available for) Permitted Investments, Investments under clause (10) of the definition thereof as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of HoldingsSubsidiary, provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.03, the covenant described above under the caption “—Incurrence of Indebtedness and Issuance of Preferred Stock,” calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation. Additional Subsidiary Guarantees If, after the date of the indenture, any Restricted Subsidiary of the Company that is not already a Guarantor or an Issuer guarantees (or is a co-borrower, co-issuer or co-direct obligor of) any other Indebtedness of any Issuer or Guarantor, then in either case that Subsidiary will become a Guarantor by executing a supplemental indenture and delivering it to the trustee within 10 Business Days of the date on which it guaranteed or incurred such Indebtedness, as the case may be; provided, however, that the preceding shall not apply to Subsidiaries of the Company that have properly been designated as Unrestricted Subsidiaries in accordance with the indenture for so long as they continue to constitute Unrestricted Subsidiaries. In the event (a) the Priority Lien Debt is paid-off or otherwise discharged or the guaranty-related provisions thereunder are otherwise made materially less restrictive on the Issuers and Guarantors than the Priority Lien Documents as in effect on the date of the indenture, the indenture shall provide for customary guaranty-related provisions substantially consistent with those in effect under the Priority Lien Debt on the date of the indenture or (b) the Priority Lien Collateral Agent or holders of the Priority Lien Debt fail to require, fail to take any action to obtain or otherwise waive the right to receive a guaranty from a Restricted Subsidiary to the extent such guaranty would be required (or could be required upon reasonable request or otherwise) under the Priority Lien Documentation as in effect on the Issue Date, the collateral trustee, at the request of the Majority Holders, or the Majority Holders, will have the right to require the Issuers and Guarantors to take reasonable actions to cause such Restricted Subsidiary to execute a supplemental indenture (if any) within 60 days of the date of such request (or such later date as the Majority Holders may reasonably determine).

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company (or the Parent from the Guarantee Effective Date) may designate any Restricted Subsidiary of Holdings (other than including any newly acquired or newly formed Subsidiary or Person that becomes a Subsidiary through merger or consolidation or Investment therein but excluding the BorrowerCompany) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Parent, the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07(a) hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company or the Parent. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company (or the Parent from the Guarantee Effective Date) may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Parent or the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company or the Parent as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company or the Parent will be in default of such covenant. The Board of Directors of the Company (or the Parent from the Guarantee Effecgive Date) may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company or the Parent; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company or the Parent of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Issuers may designate any Restricted Subsidiary of Holdings (other than the BorrowerCo-Issuer) to be an Unrestricted Subsidiary if that designation would not cause a Default or an Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Issuer and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments pursuant to Section 3.3 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Issuer. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board Issuers may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause an Event of Directors Default. Any designation of Holdings a Subsidiary of the Issuer as an Unrestricted Subsidiary (other than the Co-Issuer who, for the avoidance of doubt, cannot be an Unrestricted Subsidiary) will be evidenced to the Trustee by delivering to the Trustee an Officer’s Certificate certifying that such designation complies with the preceding conditions and was permitted by Section 3.3 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary as of such date and, if such Indebtedness is not permitted to be incurred as of such date by Section 3.2 hereof, the Issuers will be in default of such covenant. The Issuers may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.033.2 hereof (including pursuant to Section 3.2(b)(5) treating such redesignation as an acquisition for the purpose of such clause), calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, applicable Reference Period; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation. Any such designation by the Issuers shall be evidenced to the Trustee by delivering to the Trustee an Officer’s Certificate certifying that such designation complies with the preceding conditions.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors Supervisors of Holdings Suburban Propane may designate any of its Restricted Subsidiary of Holdings (Subsidiaries, other than the Borrower) Operating Partnership or Finance Corp., to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 or represent Permitted Investments, as determined by HoldingsDefault. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors Supervisors of Holdings Suburban Propane may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of Suburban Propane as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of the Board Resolution giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of Suburban Propane as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 9.10 hereof, Suburban Propane will be in default of Section 9.10. The Board of Supervisors of Suburban Propane may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of HoldingsSubsidiary; provided, provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings Suburban Propane of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.039.10 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Parent may designate any Restricted Subsidiary of Holdings (other than the a Borrower) to be as an Unrestricted Subsidiary if or any Unrestricted Subsidiary as a Restricted Subsidiary; provided, that designation would not cause a (i) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing, (ii) the other requirements for Group shall be in compliance with the financial covenant set forth in Section 6.07 (whether or not then tested) on a pro forma basis after giving effect to such designation prescribed in as of the definition last day of “Unrestricted Subsidiary” are satisfied. If a the Fiscal Quarter most recently ended and (iii) no Restricted Subsidiary of Holdings is may be designated as an Unrestricted Subsidiary, Subsidiary if it was previously designated as an Unrestricted Subsidiary pursuant to this Section 5.19. The designation of any Restricted Subsidiary as an Unrestricted Subsidiary shall constitute an Investment equal to the aggregate Fair Market Value fair market value of all outstanding Investments owned by Holdings the Parent and its the Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 or represent Permitted Investmentsdesignation, as determined by Holdingsthe Parent. That Such designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board designation of Directors of Holdings may at any time designate any Unrestricted Subsidiary of Holdings to be as a Restricted Subsidiary shall constitute (i) the incurrence at the time of Holdingsdesignation of any Investment, provided that Indebtedness or Liens of such Subsidiary existing at such time and (ii) a return on any Investment by the applicable Loan Party in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value at the date of such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Loan Party’s Investment in such Subsidiary. Notwithstanding the foregoing (i) no Borrower may be designated as an Unrestricted Subsidiary and (ii) no Person may be designated as an “Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.03, calculated on a pro forma basis as ” if such designation had occurred at Person is not an “Unrestricted Subsidiary” or is a “Guarantor” under any Senior Notes, the beginning of Senior Secured Notes, the four-quarter reference periodSenior Refinancing Notes or under any agreement, and (2) no Default (other than a Reporting Default) document or Event of Default would be in existence following such designation.instrument evidencing any Material Indebtedness. Section 5.20

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Issuer may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that such designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition (y) no Default or Event of “Unrestricted Subsidiary” are satisfiedDefault has occurred and is continuing. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Issuer and its Restricted Subsidiaries in the Subsidiary properly proposed to be designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the first paragraph definition of Section 8.01 or represent “Permitted Investments, ,” as determined by Holdingsthe Issuer. That Such designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an “Unrestricted Subsidiary.” The Issuer may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if (x) such redesignation would not cause a Default or Event of Default and (y) no Default or Event of Default has occurred and is continuing, and subject to the requirements of the following paragraph. Any designation of a Subsidiary of the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture, and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Issuer as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09, the Issuer will be in default under Section 4.09. The Board of Directors of Holdings Issuer may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Issuer; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable four-quarter reference period, and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.. Section 4.18

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrowerincluding any newly acquired or newly formed Subsidiary or Person that becomes a Subsidiary through merger or consolidation or Investment therein) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Company may designate any Subsidiary to be a Restricted Subsidiary and may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if by giving written notice to each holder of Notes that designation would the Board of Directors of the Company has made such designation, provided, however, that no Subsidiary may be designated a Restricted Subsidiary and no Restricted Subsidiary may be designated an Unrestricted Subsidiary unless, at the time of such action and after giving effect thereto, (a) solely in the case of a Restricted Subsidiary being designated an Unrestricted Subsidiary, such Restricted Subsidiary being designated an Unrestricted Subsidiary shall not cause a have any continuing Investment in the Company or any other Restricted Subsidiary and (b) no Default or Event of Default shall have occurred and be continuing (provided that, after the other requirements for such designation prescribed Release Date, with respect to Section 10.1, calculation of compliance therewith shall be made as of the date of determination under this Section 10.12 and not as of the end of the immediately preceding fiscal quarter of the Company). Any Restricted Subsidiary which has been designated an Unrestricted Subsidiary and which has then been redesignated a Restricted Subsidiary, in each case in accordance with the definition provisions of “the first sentence of this Section 10.12, shall not at any time thereafter be redesignated an Unrestricted Subsidiary” are satisfiedSubsidiary without the prior written consent of the Required Holders. If Any Unrestricted Subsidiary which has been designated a Restricted Subsidiary of Holdings is designated as and which has then been redesignated an Unrestricted Subsidiary, in each case in accordance with the aggregate Fair Market Value of all outstanding Investments owned by Holdings and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as provisions of the time first sentence of the designation and will reduce the amount available for Restricted Payments under the first paragraph of this Section 8.01 or represent Permitted Investments10.12, as determined by Holdings. That designation shall only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings may not at any time designate any Unrestricted Subsidiary of Holdings to thereafter be redesignated a Restricted Subsidiary of Holdings, provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.03, calculated on a pro forma basis as if such designation had occurred at without the beginning prior written consent of the four-quarter reference period, and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designationRequired Holders.

Designation of Restricted and Unrestricted Subsidiaries. The As long as no Default (other than a Reporting Default) or Event of Default has occurred and is continuing, the Board of Directors of Holdings the Company may designate any Restricted newly-formed Subsidiary of Holdings (other than the Borrower) Company or any Subsidiary of the Company acquired after the date of the indenture pursuant to an Acquisition permitted under the provisions governing Restricted Payments and Permitted Investments to be an Unrestricted Subsidiary if if, in either case, that designation would not cause a Default or Event of Default and the other requirements for Default. Any such designation prescribed shall be made on or promptly after the date such Subsidiary becomes a Subsidiary of the Company (and, in any case, within 30 days of the definition of “Unrestricted Subsidiary” are satisfiedformation or acquisition thereof). If a Restricted Subsidiary of Holdings the Company is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be either an Investment made as of the time of the designation and that will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 the covenant described above under the caption “Restricted Payments” or represent (and will reduce the amount available for) Permitted Investments, Investments under clause (10) of the definition thereof as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of HoldingsSubsidiary, provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.03, the covenant described above under the caption “—Incurrence of Indebtedness and Issuance of Preferred Stock,” calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Parent’s Board of Directors of Holdings may designate any Restricted Subsidiary of Holdings (other than the BorrowerCompany) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event Default. Any designation of Default and a Subsidiary as an Unrestricted Subsidiary will be deemed to be a designation of each of such entity’s Subsidiaries as Unrestricted Subsidiaries. Following the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfied. If Issue Date, if a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings Parent and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.8 hereof or under one or more of the first paragraph clauses of Section 8.01 or represent the definition of “Permitted Investments, ,” as determined by HoldingsXxxxxx. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Parent’s Board of Directors of Holdings may at any time designate redesignate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, if the redesignation would not cause a Default; provided that such designation redesignation will be deemed to be an incurrence of Indebtedness and, if applicable, an incurrence of related Liens by a Restricted Subsidiary of Holdings Parent of any outstanding Indebtedness and, if applicable, related Liens of such Unrestricted Subsidiary, Subsidiary and such designation redesignation will only be permitted if (1) such Indebtedness is and, if applicable, related Liens are permitted under Section 8.034.9 hereof and, calculated if applicable, Section 4.11 hereof (other than clause (3) under the definition of “Permitted Liens”), calculated, if applicable, on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default Default; provided that in no event will the business currently operated by the Hungarian Subsidiary be transferred to or Event of Default and the other requirements for such designation prescribed in the definition of “held by an Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1i) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro SF\552388.8 forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2ii) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Parent may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Issuer and its the Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount Cumulative Buildup Basket or amounts available for Restricted Payments under one or more clauses of the first paragraph definition of Permitted Investments or one or more clauses of Section 8.01 or represent Permitted Investments4.08(b), as determined by Holdingsthe Issuer. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings Parent may at any time designate redesignate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, provided if (i) that such designation will be deemed to be an incurrence of Indebtedness by redesignation would not cause a Restricted Subsidiary of Holdings of any outstanding Default and (ii) all Liens and Indebtedness of such Unrestricted SubsidiarySubsidiary outstanding immediately after such redesignation would, if incurred at such time, have been permitted to be incurred (and shall be deemed to have been incurred) under this Indenture. Any such designation will only or redesignation shall be permitted if (1) such Indebtedness is permitted under Section 8.03, calculated on evidenced by filing with the Trustee a pro forma basis as if certified copy of a resolution of the Board of Directors of Parent giving effect to such designation had occurred at or redesignation and an Officer’s Certificate certifying that such designation or redesignation complied with the beginning of the four-quarter reference period, preceding conditions and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designationwas permitted by Section 4.08.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Parent may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Issuer and its the Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount Cumulative Buildup Basket or amounts available for Restricted Payments under one or more clauses of the first paragraph definition of Permitted Investments or one or more clauses of Section 8.01 or represent Permitted Investments4.08(b), as determined by Holdingsthe Issuer. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings Parent may at any time designate redesignate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, provided if (i) that such designation will be deemed to be an incurrence of Indebtedness by redesignation would not cause a Restricted Subsidiary of Holdings of any outstanding Default and (ii) all Liens and Indebtedness of such Unrestricted SubsidiarySubsidiary outstanding immediately after such redesignation would, if incurred at such time, have been permitted to be incurred (and shall be deemed to have been incurred) under this Indenture. Any such designation will only or redesignation shall be permitted if (1) such Indebtedness is permitted under Section 8.03, calculated on evidenced by filing with the Trustee a pro forma basis as if certified copy of a resolution of the Board of Directors of Parent giving effect to such designation had occurred at or redesignation and an Officer’s Certificate certifying that such designation or redesignation complied with the beginning of the four-quarter reference period, preceding conditions and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.was permitted by Section 4.08

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrowerincluding any newly acquired or newly formed Subsidiary or Person becoming a Subsidiary through merger or consolidation or Investment therein) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings Parent, the Company and its Parent’s Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the first paragraph definition of Section 8.01 or represent “Permitted Investments”, as determined by Holdingsthe Company. That designation shall will only be permitted if the such Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. Any designation of a Subsidiary of Parent as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Company giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the conditions specified in clauses (1) to (4) of the definition of “Unrestricted Subsidiary” and was permitted under Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements specified in clauses (1) to (4) of the definition of “Unrestricted Subsidiary”, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of Parent as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09, the Company will be in default of such covenant. The Board of Directors of Holdings the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Parent; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings Parent of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default Default; provided that in no event will the business currently operated by the Hungarian Subsidiary be transferred to or Event of Default and the other requirements for such designation prescribed in the definition of “held by an Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1i) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2ii) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board Company may designate, by a certificate executed by a Responsible Officer of Directors of Holdings may designate the Company, any Restricted Subsidiary of Holdings (other than the Borrower) Co-Issuer to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. A Responsible Officer of the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default or Event of Default. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by delivering to the Trustee a certified copy of a resolution of the Board of Directors of the Company giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary should fail to meet the preceding requirements as, respectively, an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for the purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company, as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors of Holdings the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Parent may designate any Restricted Subsidiary of Holdings Parent (other than the BorrowerIssuers) to be an Unrestricted Subsidiary if that designation would not cause a Default Default; provided that in no event will the business currently operated by MagnaChip Korea be transferred to or Event of Default and the other requirements for such designation prescribed in the definition of “held by an Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings Parent and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by HoldingsMagnaChip. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings Parent may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of Parent as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of Parent giving effect to such designation and an officers’ certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of Parent as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, MagnaChip will be in default of such covenant. The Board of Directors of Parent may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Parent; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings Parent of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the 66 beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Issuer may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Issuer and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to either be an Investment made as a “Restricted Payment” as of the time of the designation and that will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 4.07(a) or represent a Permitted Investment under one or more clauses of the definition of “Permitted Investments, ,” as determined in good faith by Holdingsthe Issuer. That designation shall will only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets the definition of an “Unrestricted Subsidiary.” Any designation of a Subsidiary of the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07. The Board of Directors of Holdings Issuer may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Issuer; provided that such designation will be deemed to be an incurrence of Indebtedness and Liens by a Restricted Subsidiary of Holdings the Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09, with the Fixed Charge Coverage Ratio calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, and ; (2) such Indebtedness is permitted under Section 4.12; and (3) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness and Liens of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Issuer as of such date and, if such Indebtedness or Liens are not permitted to be incurred as of such date under Sections 4.09 and/or 4.12, the Issuer will be in default of Section 4.09 and/or Section 4.12, as applicable.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings the Company (other than Tronox Finance so long as the BorrowerCompany is a limited liability company or a partnership) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 3.4(a) or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may at any time designate redesignate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of Holdings, provided a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a Board Resolution of the Company giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 3.4. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be an incurrence of Indebtedness incurred by a Restricted Subsidiary of Holdings of any outstanding Indebtedness the Company as of such Unrestricted Subsidiarydate and, and such designation will only be permitted if (1) such Indebtedness is not permitted to be incurred as of such date under Section 8.033.3, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (2) no Default (other than a Reporting Default) or Event of Default would Company will be in existence following such designationdefault thereof.

Designation of Restricted and Unrestricted Subsidiaries. CMC and its Subsidiaries shall automatically become Unrestricted Subsidiaries, without designation, upon consummation of a CMC IPO. Except in connection with a CMC IPO, CMC, Classmates, and MyPoints shall not be designated as Unrestricted Subsidiaries. Intermediate Co., Merger Sub, FTD and their respective Subsidiaries shall constitute Unrestricted Subsidiaries, without designation, on the date of the indenture. The Board of Directors of Holdings UOL may designate any other Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings UOL and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph covenant described above under the caption “—Restricted Payments” or under one or more clauses of Section 8.01 or represent the definition of Permitted Investments, as determined by HoldingsUOL (for the avoidance of doubt, this provision will not apply to CMC or its Subsidiaries upon a CMC IPO, Intermediate Co., Merger Co., FTD or their respective Subsidiaries). That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings UOL may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. UOL and its Restricted Subsidiaries shall cause their Unrestricted Subsidiaries to meet the requirements of the definition of “Unrestricted Subsidiary.” Any designation of a Subsidiary of UOL as an Unrestricted Subsidiary will be evidenced to the trustee by filing with the trustee a certified copy of a resolution of the Board of Directors of UOL giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by the covenant described above under the caption “—Restricted Payments.” If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of the indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of UOL as of such date and, if such Indebtedness is not permitted to be incurred as of such date under the covenant described under the caption “—Incurrence of Indebtedness and Issuance of Preferred Stock,” UOL will be in default of such covenant (for the avoidance of doubt, this provision will not apply to CMC and its Subsidiaries upon a CMC IPO, Intermediate Co., Merger Co., FTD and their respective Subsidiaries). The Board of Directors of UOL may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, UOL; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings UOL of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.03, the covenant described under the caption “—Incurrence of Indebtedness and Issuance of Preferred Stock,” calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings PES may designate any Restricted Subsidiary of Holdings (other than the Borrowerincluding any newly acquired or newly formed Subsidiary or Person that becomes a Subsidiary through merger or consolidation or Investment therein) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings PES and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by HoldingsPES. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings PES may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of PES as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of PES as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09, PES will be in default of such covenant. The Board of Directors of PES may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of HoldingsPES; provided, provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings PES of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.03, 4.09 calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings may designate any Restricted Subsidiary of Holdings (other than the Borrower) Corporation to be an Unrestricted Subsidiary if that designation (a) the Subsidiary to be so designated does not own any Capital Stock or Debt of, or own or hold any Lien on any Property of, the Corporation or any other Restricted Subsidiary (b) the Subsidiary to be so designated is not obligated under any Debt, Lien or other obligation that, if in default, would not cause result (with the passage of time or notice or otherwise) in a Default default on any Debt of the Corporation or Event of Default any Restricted Subsidiary and (c) either (i) the other requirements for Subsidiary to be so designated has total assets of $1,000 or less or (ii such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfied. If is effective immediately upon such entity becoming a Restricted Subsidiary of Holdings is the Corporation or any Restricted Subsidiary. Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the aggregate Fair Market Value Corporation or of all outstanding Investments owned any Wholly Owned Subsidiary will be classified as a Restricted Subsidiary, provided that the requirements set forth in clauses (x) and (y) of the immediately following paragraph would be satisfied after giving pro forma effect to such classification. Any Person not permitted by Holdings and its the terms of the immediately preceding sentence to be classified as a Restricted Subsidiaries in the Subsidiary properly designated shall be automatically classified as an Unrestricted Subsidiary will be deemed to be an Investment made Subsidiary. Except as of the time of the designation and will reduce the amount available for Restricted Payments under provided in the first paragraph sentence of Section 8.01 or represent Permitted Investmentsthis paragraph, no Restricted Subsidiary may be redesignated as determined by Holdings. That designation shall only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdingsif, provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.03, calculated on a immediately after giving pro forma basis as if effect to such designation had occurred designation, (x) the Corporation could Incur at the beginning least $1.00 of the four-quarter reference period, additional Debt pursuant to Section 4.05 and (2y) no Default (other than a Reporting Default) or Event of Default shall have occurred and be continuing or would result therefrom. Any such designation or redesignation by the Board of Directors will be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such designation or redesignation and an Officers' Certificate (a) certifying that such designation or redesignation complies with the foregoing provisions and (b) giving the effective date of such designation or redesignation, such filing with the Trustee to occur within 45 days after the end of the fiscal quarter of the Corporation in existence following which such designationdesignation or redesignation is made (or, in the case of a designation or redesignation made during the last fiscal quarter of the Corporation's fiscal year, within 90 days after the end of such fiscal year).

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Borrower may designate (or re-designate) any Restricted Subsidiary of Holdings (other than the Borrower) to be as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary if that designation would not cause a Default or an Event of Default and the other requirements for such designation prescribed in the definition of Default; provided, however, that no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Unrestricted Restricted Subsidiary” are satisfiedfor the purpose of the ABL Credit Agreement. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings and its Restricted Subsidiaries then, other than in the Subsidiary properly designated as an Unrestricted Subsidiary case of New PortLP and New PortGP, such designation will be deemed to be an Investment by the Borrower therein made as of the time of the designation in an amount equal to the portion of the Fair Market Value of the net assets of such Subsidiary attributable to the Borrower’s equity interest therein as estimated by the Borrower in good faith, and will reduce the amount available for Restricted Payments under Section 9.03 or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Borrower, in an amount equal to such deemed Investment. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings Borrower may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Borrower; provided that such designation will be deemed to be an incurrence of Liens and Indebtedness by a Restricted Subsidiary of Holdings the Borrower of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Liens and Indebtedness is are permitted under Section 8.03Sections 9.01 and 9.04, in each case, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, period and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation. Any such designation by the Borrower shall be evidenced to the Administrative Agent by an Officer’s Certificate certifying that such designation complies with the preceding conditions. Notwithstanding anything to the contrary herein, on the Closing Date, New PortLP and New PortGP shall be the only Subsidiaries of the Borrower that shall be Unrestricted Subsidiaries.

Designation of Restricted and Unrestricted Subsidiaries. The Board Chief Executive Officer or the Chief Financial Officer of Directors of Holdings the Borrower may designate any Restricted Subsidiary of Holdings (other than the Borrower) Borrower to be an Unrestricted Subsidiary if that designation would not cause a Default Default; provided that in no event will the business currently operated by the Borrower be transferred to or Event of Default and the other requirements for such designation prescribed in the definition of “held by an Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Borrower and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 9.2(C) or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Borrower. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. Any designation of a Restricted Subsidiary of the Borrower as an Unrestricted Subsidiary in accordance with the preceding paragraph will be evidenced by a certificate of the Chief Executive Officer or the Chief Financial Officer of the Borrower giving effect to such designation and certifying that such designation complied with the preceding conditions and was permitted by the covenant described above under the caption “- Restricted Payments”. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Loan Agreement and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Borrower as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 9.2(D) the Borrower will be in default of such covenant. The Board Chief Executive Officer or the Chief Financial Officer of Directors of Holdings the Borrower may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1a) such Indebtedness is permitted under Section 8.039.2(D), calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2b) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Borrower may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if in accordance with the definition of “Unrestricted Subsidiary”; provided that designation would not cause a Default or (i) immediately before and after giving effect to such designation, no Event of Default shall have occurred and be continuing, (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 7.11 (whether or not such covenant is applicable at such time in accordance with its terms), and (iii) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” as defined in any of the Senior Notes; provided that (x) solely with respect to the Designated Subsidiaries the foregoing clause (iii) shall not apply for a period commencing on the date the Designated Subsidiaries are designated as “Restricted Subsidiaries” as defined in any of the Senior Notes and ending on the date that is 30 days thereafter, and (y) the Administrative Agent shall have the right, and the other requirements for Borrower hereby expressly authorizes the Administrative Agent, to make a written list of Designated Subsidiaries available to Lenders on the “Private Side Information” portion of the Platform. 134 All outstanding Investments owned by the Borrower and its Restricted Subsidiaries in the designated Unrestricted Subsidiary will be treated as an Investment by the Borrower or such Restricted Subsidiary, as applicable, made at the time of the designation. The amount of all such outstanding Investments will be the aggregate fair market value of such Investments at the time of the designation. The designation will not be permitted if such Investment would not be permitted under Section 7.02 at that time and if such Restricted Subsidiary does not otherwise meet the definition of an Unrestricted Subsidiary. Any designation of a Subsidiary of the Borrower as an Unrestricted Subsidiary shall be evidenced to the Administrative Agent by delivering to the Administrative Agent a certified copy of the board resolution of the Borrower giving effect to such designation prescribed and a certificate signed by a Responsible Officer of the Borrower certifying that such designation complied with the foregoing conditions and the conditions set forth in the definition of “Unrestricted Subsidiary” are satisfied. If a Restricted and was permitted by this Section 6.17, provided, however, (i) no Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings and its Restricted Subsidiaries in the Subsidiary properly may be designated as an Unrestricted Subsidiary if such designated Unrestricted Subsidiary will own any IP Rights and the failure of the Borrower or any of its Restricted Subsidiaries to own such IP Rights could reasonably be expected to have a Material Adverse Effect and (ii) neither the Borrower nor any of its Restricted Subsidiaries shall be permitted to contribute any IP Rights to an Unrestricted Subsidiary if (x) the failure by the Borrower or any of its Restricted Subsidiaries to own such IP Rights could reasonably be expected to have a Material Adverse Effect or (y) after giving effect to such contribution the Borrower would not be in pro forma compliance with the covenant set forth in Section 7.11 whether or not such covenant is applicable at such time in accordance with its terms. If, at any time, any Unrestricted Subsidiary would fail to meet any of the requirements of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Agreement and (1) any Indebtedness of such Subsidiary, (2) any Liens of such Subsidiary and (3) any Investments of such Subsidiary, in each case shall be deemed to be an Investment made incurred by a Restricted Subsidiary of the Borrower as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 or represent Permitted such date and, if such Liens, Investments, or Indebtedness are not permitted to be incurred as determined by Holdingsof such date under Section 7.01, Section 7.02 or Section 7.03, as applicable, the Borrower shall be in default of such Section 7.01, Section 7.02 or Section 7.03, as applicable. That designation shall only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. 135 The Board of Directors of Holdings Borrower may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Subsidiary; provided that such designation will shall be deemed to be an incurrence incurrence, on the date of Indebtedness designation, of Indebtedness, Liens and Investments by a Restricted Subsidiary of Holdings the Borrower of any outstanding Indebtedness Indebtedness, Liens and Investments of such Unrestricted Subsidiary, Subsidiary and such designation will shall only be permitted if (1) such Liens are permitted under Section 7.01, such Investments are permitted under Section 7.02, and such Indebtedness is permitted under Section 8.03, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, 7.03; and (2) no Default (other than a Reporting Default) or Event of Default would shall have occurred and be continuing; and provided further, however, if any such Subsidiaries are Designated Subsidiaries, then the foregoing proviso shall not apply to any such Designated Subsidiaries and, notwithstanding anything contained herein or in existence the other Loan Documents to the contrary, such Designated Subsidiaries shall not be subject to the terms and provisions of this Agreement (including, without limitation, Section 6.11 and Section 6.15) and the other Loan Documents during the period commencing on the date the Designated Subsidiaries are designated as “Restricted Subsidiaries” hereunder and ending on the date that is 30 days thereafter, and on such thirtieth day any such Designated Subsidiary that is a Restricted Subsidiary at such time shall be deemed, for purposes of Sections 7.01, 7.02 and 7.03, to have incurred all Liens, Investments, and Indebtedness of such Designated Subsidiary then outstanding. The following entities have previously been designated as Unrestricted Subsidiaries under this Agreement and remain Unrestricted Subsidiaries as of the Closing Date: 0xx Xxxxxx Food & Provisions, Inc., a Missouri corporation, Active Nutrition International GmbH, a German entity, Agricore United Holdings Inc., a Delaware corporation, American Blanching Company, a Georgia corporation, Attune Foods, LLC, a Delaware limited liability company, BellRing Brands, Inc., a Delaware corporation, BellRing Brands, LLC, a Delaware limited liability company, Dakota Growers Pasta Company, Inc., a North Dakota corporation, DNA Dreamfields Company, LLC, an Ohio limited liability company, Dymatize Enterprises, LLC, a Delaware limited liability company, GB Acquisition USA, Inc., a Washington corporation, Golden Acquisition Sub, LLC, a Delaware limited liability company, Golden Boy Nut Corporation, a Delaware corporation, Golden Nut Company (USA) Inc., a Washington corporation, Nuts Distributor of America Inc., a Washington corporation, Premier Nutrition Company, LLC, a Delaware limited liability company, Primo Piatto, Inc., a Minnesota corporation, Golden Boy Foods Ltd., a British Columbia corporation, PHI Acquisition GP ULC, a British Columbia unlimited liability company, PHI Acquisition LP ULC, a British Columbia unlimited liability company, PHI Acquisition Limited Partnership, a British Columbia limited partnership, Supreme Protein, LLC, a Delaware limited liability company, TA/DEI-A Acquisition Corp., a Delaware corporation, and any direct or indirect now or hereafter created or acquired Subsidiary of any of the foregoing. The foregoing sentence does not prohibit or limit in any respect the ability of the Borrower to designate any of the foregoing Persons as Restricted Subsidiaries and thereafter re-designate any or all of such designationPersons as Unrestricted Subsidiaries, in each case, subject to the terms and conditions of this Section 6.17.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Issuer may designate any Restricted Subsidiary of Holdings (other than the Borrower) Issuer to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings the Issuer is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Issuer and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made as of the time of the designation and will shall reduce the amount Cumulative Buildup Basket or amounts available for Restricted Payments under one or more clauses of the first paragraph definition of Permitted Investments or one or more clauses of Section 8.01 or represent Permitted Investments, 4.07(b) as determined by Holdingsthe Issuer. That designation shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Issuer may at any time designate redesignate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, provided if that such designation will be deemed to be an incurrence of Indebtedness by redesignation would not cause a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, Default and such designation will only be permitted if either: (1) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to Section 4.09(a) or (2) the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries would be greater than or equal to such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such designation, or (3) the Indebtedness is permitted under Section 8.03to Tangible Net Worth Ratio for the Issuer and its Restricted Subsidiaries would be less than or equal to such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such designation, calculated in each case on a pro forma basis taking into account such redesignation. Any designation of a Subsidiary of the Issuer as if an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Issuer giving effect to such designation had occurred at and an officer’s certificate certifying that such designation complied with the beginning of the four-quarter reference period, preceding conditions and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designationwas permitted by Section 4.07.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default Default; provided that in no event shall the business currently operated by the Canadian Issuer be transferred to or Event of Default and the other requirements for such designation prescribed in the definition of “held by an Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted SubsidiarySubsidiary and has assets of more than $1,000, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made as of the time of the designation and will shall reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate of the Company certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. As of the Effective Date, all of the Subsidiaries of Holdings will be Restricted Subsidiaries. The Board of Directors of Holdings may will be able, at any time after the Effective Date, to designate any Restricted Subsidiary of Holdings (other than the a Borrower) to be an Unrestricted Subsidiary if Subsidiary; provided, that designation would not cause a immediately before and after such designation, no Default or Event of Default shall have occurred and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedbe continuing. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings and its the Restricted Subsidiaries in the Restricted Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments permitted under the first paragraph of Section 8.01 or represent Permitted Investments, as determined by Holdings7.7. That designation shall will only be permitted if the Investment would be permitted at that time and if the such Restricted Subsidiary so designated otherwise meets the definition of an “Unrestricted Subsidiary.” Any designation of a Subsidiary of Holdings as an Unrestricted Subsidiary will be evidenced to the Lenders by filing with the Lenders a certified copy of a resolution of the Board of Directors or a committee thereof giving effect to such designation and a certified by a Responsible Officer that such designation complied with the preceding conditions and was permitted by Section 7.7. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary and any Indebtedness of such Unrestricted Subsidiary will be deemed to be incurred by a Restricted Subsidiary as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 7.4, Borrowers shall be in default of Section 7.4. The Board of Directors of Holdings may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Subsidiary; provided that (i) such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary and the creation, incurrence, assumption or otherwise causing to exist any Lien of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.037.4, calculated on a pro forma basis as if such designation had occurred at the beginning of the relevant four-quarter reference period, and ; (2) such Lien is permitted; and (3) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation and (ii) no Subsidiary may be designated as an Unrestricted Subsidiary if, after such designation, it would be a “Restricted Subsidiary” under the Second Lien Note Purchase and Exchange Agreement, the Existing Notes, any Permitted Refinancing Indebtedness with respect to the foregoing or any other Junior Indebtedness.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors Supervisors of Holdings Suburban Propane may designate any of its Restricted Subsidiary of Holdings (Subsidiaries, other than the Borrower) Operating Partnership or Finance Corp., to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 or represent Permitted Investments, as determined by HoldingsDefault. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors Supervisors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of Holdings a Subsidiary of Suburban Propane as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of the Board Resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of Suburban Propane as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, Suburban Propane will be in default of such covenant. The Board of Supervisors of Suburban Propane may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings Suburban Propane of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under by Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Parent may designate any Restricted Subsidiary of Holdings Parent (other than the BorrowerCompany) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings Parent is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company, Parent and its the Restricted Subsidiaries of Parent in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce be treated as a Restricted Payment under Section 3.03 hereof or a Permitted Investment under one or more clauses of the amount available for Restricted Payments under the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by HoldingsParent. That designation shall will only be permitted if the Investment would be permitted under this Indenture at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings Parent may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default or Event of Default. Any designation of a Subsidiary of Parent as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a Board Resolution of Parent giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 3.03 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of Parent as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 3.02 hereof, Parent will be in default of such covenant. The Board of Directors of Parent may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Parent; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.033.02 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than except a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall will only be permitted if (a) either (i) the Subsidiary to be so designated has total consolidated assets of $10,000 or less or (ii) if such Subsidiary has consolidated assets greater than $10,000, the Investment would be permitted at that time and if (b) the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date by Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under by Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments as described in Section 3.3 herein or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of Directors a Subsidiary of Holdings the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by an Officer’s Certificate certifying that such designation complies with the preceding conditions and was not prohibited by Section 3.3 herein. The Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence Incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.033.2 herein (including pursuant to clause 5(ii) thereof treating such redesignation as an acquisition for the purpose of such clause), calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation. Any such designation by the Company shall be evidenced to the Trustee by an Officer’s Certificate certifying that such designation complies with the preceding conditions.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings may designate any Restricted Subsidiary of Holdings the Company (other than including any newly acquired or newly formed Subsidiary of the BorrowerCompany) to be an Unrestricted Subsidiary if that (i) the Subsidiary to be so designated does not own any Capital Stock or Indebtedness of, or own or hold any Lien on any property of, the Company or any other Restricted Subsidiary, (ii) the Subsidiary to be so designated is not obligated under any Indebtedness or other obligation that, if in default, would result (with the passage of time or the giving of notice or otherwise) in a default on any Indebtedness of the Company or any Restricted Subsidiary and (iii) either (a) the Subsidiary to be so designated has total assets of $1,000 or less or (b) if such Subsidiary has assets greater than $1,000, such designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfied. If be permitted under Section 4.04 as a Restricted Subsidiary of Holdings is Payment. Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the aggregate Fair Market Value Company or of all outstanding Investments owned by Holdings and its any Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made classified as of the time of the designation and will reduce the amount available for a Restricted Payments under the first paragraph of Section 8.01 or represent Permitted Investments, as determined by Holdings. That designation shall only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Notwithstanding the foregoing sentence, the Board of Directors of Holdings may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary if, immediately after giving pro forma effect to such designation, (i) the Company could incur $1.00 of Holdings, provided additional Indebtedness pursuant to clause (i) of the definition of Permitted Indebtedness and (ii) no Default shall have occurred and be continuing. Any such designation by the Board of Directors shall be evidenced to the Trustee by promptly filing with the Trustee a copy of the Certified Resolution giving effect to such designation and an Officers' Certificate certifying that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under complies with this Section 8.03, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation4.09.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings may designate any Restricted Subsidiary of Holdings (other than the BorrowerBorrowers) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 6.01 or represent Permitted Investments, as determined by Holdings. That designation shall only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.036.03, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Issuer may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Issuer and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Issuer. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Issuer may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a copy of a resolution of the Board of Directors giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. The Board of Directors of Holdings the Issuer may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Borrower may designate (or re-designate) any Restricted Subsidiary of Holdings (other than the Borrower) to be as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary if that designation would not cause a Default or an Event of Default and the other requirements for such designation prescribed in the definition of Default; provided, however, that no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Unrestricted Restricted Subsidiary” are satisfiedfor the purpose of the ABL Credit Agreement. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings and its Restricted Subsidiaries then, other than in the Subsidiary properly designated as an Unrestricted Subsidiary case of New PortLP and New PortGP, such designation will be deemed to be an Investment by the Borrower therein made as of the time of the designation in an amount equal to the portion of the Fair Market Value of the net assets of such Subsidiary attributable to the Borrower’s equity interest therein as estimated by the Borrower in good faith, and will reduce the amount available for Restricted Payments under Section 9.3 or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Borrower, in an amount equal to such deemed Investment. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings Borrower may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Borrower; provided that such designation will be deemed to be an incurrence of Liens and Indebtedness by a Restricted Subsidiary of Holdings the Borrower of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Liens and Indebtedness is are permitted under Section 8.03Sections 9.1 and 9.4, in each case, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, period and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation. Any such designation by the Borrower shall be evidenced to the Administrative Agent by an Officer’s Certificate certifying that such designation complies with the preceding conditions. Notwithstanding anything to the contrary herein, on the Closing Date, New PortLP and New PortGP shall be the only Subsidiaries of the Borrower that shall be Unrestricted Subsidiaries.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Parent may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Parent and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 or represent Permitted Investments, as determined by Holdingsdesignation. That designation shall will only be permitted if the Investment would be permitted at that time under Section 4.07 hereof and if the Restricted Subsidiary so designated otherwise meets the definition of an “Unrestricted Subsidiary.” The Board of Directors of the Parent may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Parent as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Parent giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the preceding conditions. The Board of Directors of Holdings the Parent may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Parent; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Parent of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted only if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, period and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Playboy may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be Playboy as an Unrestricted Subsidiary if that designation would not cause a Default or an Event of Default and Default; provided that in no event shall (a) the other requirements for such designation prescribed business currently operated by any Playboy.com Entity be transferred to or held by an Unrestricted Xxxxxxxxxx, (b) Borrower be designated as an Unrestricted Subsidiary or (c) any Restricted Subsidiary in existence -43- on the definition of “Closing Date be designated as an Unrestricted Subsidiary” are satisfied, other than a Restricted Subsidiary that is being merged, consolidated, dissolved, liquidated or wound up, or is selling all of its assets, in each case as permitted pursuant to Section 7.04. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by Holdings Playboy and its Restricted Subsidiaries in the Subsidiary properly so designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the such designation and that designation will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 or represent Permitted Investments, as determined by Holdings. That designation shall only be permitted if the such Investment would be permitted at that time and if the such Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings Playboy may at any time designate any Unrestricted Subsidiary of Holdings to be as a Restricted Subsidiary of Holdings, Playboy; provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings Playboy of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will shall only be permitted if (1i) such Indebtedness is permitted under Section 8.037.03, calculated on a pro forma proforma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2ii) no Default (other than a Reporting Default) or Event of Default would have occurred and be in existence continuing following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings may designate any Restricted Subsidiary of Holdings (other than the Borrower) Corporation to be an Unrestricted Subsidiary if that designation (a) the Subsidiary to be so designated does not own any Capital Stock or Debt of, or own or hold any Lien on any Property of, the Corporation or any other Restricted Subsidiary (b) the Subsidiary to be so designated is not obligated under any Debt, Lien or other obligation that, if in default, would not cause result (with the passage of time or notice or otherwise) in a Default default on any Debt of the Corporation or Event of Default any Restricted Subsidiary and (c) either (i) the other requirements for Subsidiary to be so designated has total assets of $1,000 or less or (ii) such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfied. If is effective immediately upon such entity becoming a Restricted Subsidiary of Holdings is the Corporation or any Restricted Subsidiary. Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the aggregate Fair Market Value Corporation or of all outstanding Investments owned any Wholly Owned Subsidiary will be classified as a Restricted Subsidiary, provided that the requirements set forth in clauses (x) and (y) of the immediately following paragraph would be satisfied after giving pro forma effect to such classification. Any Person not permitted by Holdings and its the terms of the immediately preceding sentence to be classified as a Restricted Subsidiaries in the Subsidiary properly designated shall be automatically classified as an Unrestricted Subsidiary will be deemed to be an Investment made Subsidiary. Except as of the time of the designation and will reduce the amount available for Restricted Payments under provided in the first paragraph sentence of Section 8.01 or represent Permitted Investmentsthis paragraph, no Restricted Subsidiary may be redesignated as determined by Holdings. That designation shall only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdingsif, provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.03, calculated on a immediately after giving pro forma basis as if effect to such designation had occurred designation, (x) the Corporation could Incur at the beginning least $1.00 of the four-quarter reference period, additional Debt pursuant to Section 4.05 and (2y) no Default (other than a Reporting Default) or Event of Default shall have occurred and be continuing or would result therefrom. Any such designation or redesignation by the Board of Directors will be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such designation or redesignation and an Officers' Certificate (a) certifying that such designation or redesignation complies with the foregoing provisions and (b) giving the effective date of such designation or redesignation, such filing with the Trustee to occur within 45 days after the end of the fiscal quarter of the Corporation in existence following which such designationdesignation or redesignation is made (or, in the case of a designation or redesignation made during the last fiscal quarter of the Corporation's fiscal year, within 90 days after the end of such fiscal year).

Designation of Restricted and Unrestricted Subsidiaries. The Company’s Board of Directors of Holdings may designate any Restricted Subsidiary of Holdings (other than the BorrowerBHA) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event Default. Any designation of Default and a Subsidiary as an Unrestricted Subsidiary will be deemed to be a designation of each of such entity’s Subsidiaries as Unrestricted Subsidiaries. Following the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfied. If Issue Date, if a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.8 hereof or under one or more of the first paragraph clauses of Section 8.01 or represent the definition of “Permitted Investments, ,” as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Company’s Board of Directors of Holdings may at any time designate redesignate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, if the redesignation would not cause a Default; provided that such designation redesignation will be deemed to be an incurrence of Indebtedness and, if applicable, an incurrence of related Liens by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness and, if applicable, related Liens of such Unrestricted Subsidiary, Subsidiary and such designation redesignation will only be permitted if (1) such Indebtedness is and, if applicable, related Liens are permitted under Section 8.034.9 hereof and, calculated if applicable, Section 4.11 hereof (other than clause (3) under the definition of “Permitted Liens”), calculated, if applicable, on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 or represent Permitted Investments, as determined by Holdingsdesignation. That designation shall will only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated as an Unrestricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Company giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, the Company will be in default of such provisions in this Indenture. The Board of Directors of Holdings the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Parent may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by Holdings the Parent and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments as described in Section 3.3 herein or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Parent. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board Parent may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of Directors a Subsidiary of Holdings the Parent as an Unrestricted Subsidiary will be evidenced to the Trustee by delivering to the Trustee an Officer’s Certificate certifying that such designation complies with the preceding conditions and was permitted by Section 3.3 herein. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date by Section 3.2 herein, the Parent will be in default of such covenant. The Parent may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Parent; provided that such designation will be deemed to be an incurrence Incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.033.2 herein (including pursuant to clause 5(ii) thereof treating such redesignation as an acquisition for the purpose of such clause), calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation. Any such designation by the Parent shall be evidenced to the Trustee by delivering to the Trustee an Officer’s Certificate certifying that such designation complies with the preceding conditions.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Xxxx Capital may designate any Restricted Subsidiary of Holdings (Subsidiary, other than the Borrower) Xxxx Capital, to be an Unrestricted Subsidiary of Xxxx Las Vegas if that designation would not cause a Default or an Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings Xxxx Las Vegas is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings Xxxx Las Vegas and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made in an Unrestricted Subsidiary as of the time of the designation and will shall reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 4.07 hereof or represent Permitted Investments, as determined by HoldingsXxxx Las Vegas. That designation shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated of Xxxx Las Vegas otherwise meets the definition of an "Unrestricted Subsidiary." The Board of Directors of Wynn Capital may redesignate any Unrestricted Subsidiary of Xxxx Las Vegas to be a Restricted Subsidiary of Xxxx Las Vegas if the redesignation would not cause a Default or an Event of Default. Any designation of a Subsidiary of Xxxx Las Vegas as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of Xxxx Las Vegas as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, Xxxx Las Vegas shall be in default of such covenant. The Board of Directors of Holdings Wynn Capital may at any time designate redesignate any Unrestricted Subsidiary of Holdings Xxxx Las Vegas to be a Restricted Subsidiary of Holdings, Xxxx Las Vegas; provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings Xxxx Las Vegas of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will shall only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company (or the Parent from the Guarantee Effective Date) may designate any Restricted Subsidiary of Holdings (other than including any newly acquired or newly formed Subsidiary or Person that becomes a Subsidiary through merger or consolidation or Investment therein but excluding the BorrowerCompany) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Parent, the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07(a) hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company or the Parent. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company (or the Parent from the Guarantee Effective Date) may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Parent or the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company or the Parent as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company or the Parent will be in default of such covenant. The Board of Directors of the Company (or the Parent from the Guarantee Effective Date) may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company or the Parent; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company or the Parent of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings may designate any Restricted Subsidiary of Holdings (other than the BorrowerTerm A Borrowers) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 or represent Permitted Investments, as determined by Holdings. That designation shall only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.03, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.. 104 HN\1118344.20

Designation of Restricted and Unrestricted Subsidiaries. As of the Issue Date, all of the Subsidiaries of the Company are Restricted Subsidiaries and all of the Immaterial Subsidiaries of the Company are listed on Schedule IV hereto. The Board of Directors of Holdings Company may at any time after the Issue Date (a) designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if and (b) redesignate any Unrestricted Subsidiary as a Restricted Subsidiary; provided, that designation would not cause a immediately before and after any such designation, no Default or Event of Default shall have occurred and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedbe continuing. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Restricted Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments pursuant to Section 4.12 or under one or more clauses of the first paragraph definition of Section 8.01 or represent “Permitted Investments, ,” as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the such Restricted Subsidiary so designated otherwise meets the definition of an “Unrestricted Subsidiary.” The Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.12. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Unrestricted Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.14, the Company will be in default of such covenant. The Board of Directors of Holdings may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdingsthe Company, provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.14, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, period referred to in such Section; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors of Holdings Borrower may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or an Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by Holdings and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments pursuant to Section 7.06 or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Borrower. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. Notwithstanding the foregoing, no Subsidiary may be designated an Unrestricted Subsidiary if such Subsidiary owns any Material Intellectual Property. (b) Any designation of a Subsidiary of the Borrower as an Unrestricted Subsidiary will be evidenced to the Administrative Agent by an Officer’s Certificate certifying that such designation complies with the preceding conditions and was permitted by Section 7.06. (c) The Board of Directors of Holdings Borrower may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.037.03 (including pursuant to Section 7.03(b)(v) treating such redesignation as an acquisition for the purpose of such clause (v)), calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.. Any such designation by the Borrower shall be evidenced to the Administrative Agent by an Officer’s Certificate certifying that such designation complies with the preceding conditions. Section 6.14

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default Default; provided that in no event will the business currently operated by Greektown Casino, L.L.C. be transferred to or Event of Default and the other requirements for such designation prescribed in the definition of “held by an Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Wxxx Capital may designate any Restricted Subsidiary of Holdings (Subsidiary, other than the Borrower) Wynn Capital, to be an Unrestricted Subsidiary of Wxxx Las Vegas if that designation would not cause a Default or an Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings Wxxx Las Vegas is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings Wxxx Las Vegas and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made in an Unrestricted Subsidiary as of the time of the designation and will shall reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 4.07 hereof or represent Permitted Investments, as determined by HoldingsWxxx Las Vegas. That designation shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated of Wxxx Las Vegas otherwise meets the definition of an “Unrestricted Subsidiary.” The Board of Directors of Wynn Capital may redesignate any Unrestricted Subsidiary of Wxxx Las Vegas to be a Restricted Subsidiary of Wxxx Las Vegas if the redesignation would not cause a Default or an Event of Default. Any designation of a Subsidiary of Wxxx Las Vegas as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of Wxxx Las Vegas as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, Wxxx Las Vegas shall be in default of such covenant. The Board of Directors of Holdings Wynn Capital may at any time designate redesignate any Unrestricted Subsidiary of Holdings Wxxx Las Vegas to be a Restricted Subsidiary of Holdings, Wxxx Las Vegas; provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings Wxxx Las Vegas of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will shall only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, Reference Period; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board All of Directors of Holdings may designate the Corporation's existing Wholly-Owned Subsidiaries shall be "Restricted Subsidiaries" and any Restricted future Wholly-Owned Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if Corporation shall become a "Restricted Subsidiary" as at such time that designation would not cause it becomes a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfied. If a Restricted Wholly-Owned Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 or represent Permitted Investments, as determined by Holdings. That designation shall only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets the definition of an Unrestricted SubsidiaryCorporation. The Board of Directors of Holdings may at the Corporation shall not be permitted to designate any time existing or future Wholly-Owned Subsidiary of the Corporation as an "Unrestricted Subsidiary". However, the Board of Directors of the Corporation shall be permitted to (1) designate any Unrestricted Subsidiary of Holdings to be or any Subsidiary that is not a Wholly-Owned Subsidiary as a "Restricted Subsidiary of HoldingsSubsidiary", provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any in an amount equal to the outstanding Indebtedness of such Unrestricted Subsidiary or Subsidiary that is not a Wholly-Owned Subsidiary, as applicable, and such designation will shall only be permitted if (1a) such Indebtedness is permitted under Section 8.035.7, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2b) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation., or (2) subject to the first paragraph of Section 5.7, designate any Restricted Subsidiary that is not a Wholly-Owned Subsidiary as an "Unrestricted Subsidiary" if, as at the time of such designation, (a) such designation would not cause a Default, and (b) after giving pro forma effect to such designation, (i) the sum, without duplication, of the EBITDA of the Corporation's Unrestricted Subsidiaries, would not be greater than 10% of the EBITDA of the Corporation and its Subsidiaries, on a consolidated basis, and

Designation of Restricted and Unrestricted Subsidiaries. (a) The Board Borrower may designate, by a certificate executed by a Responsible Officer of Directors of Holdings may designate the Borrower, any Restricted Subsidiary of Holdings (other than the Borrowerany Subsidiary constituting or owning Core Collateral) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default the Borrower is in compliance with the Restricted Payment Conditions at the time of, and the other requirements for after giving effect to, such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfieddesignation. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Borrower and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph provisions of Section 8.01 6.06 or represent under one or more clauses of the definition of Permitted Investments, as determined by Holdingsthe Borrower; provided, however, that to the extent an Excluded Subsidiary is designated as an Unrestricted Subsidiary, the amount of the Investment deemed to have been made in respect of such Unrestricted Subsidiary will be calculated without duplication of the amount of the Investment made as a result of such Excluded Subsidiary’s initial designation as such plus any subsequent Investments made in such Excluded Subsidiary prior to such subsequent designation. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board A Responsible Officer of Directors of Holdings the Borrower may at any time designate redesignate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, provided if that such designation will be deemed to be an incurrence of Indebtedness by redesignation would not cause a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.03, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designationDefault.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, (i) the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Company and (ii) any Guarantee by the Company or any Restricted Subsidiary thereof of any Indebtedness of the Restricted Subsidiary being so designated will be deemed to be an incurrence of Indebtedness by the Company or such Restricted Subsidiary (or both, if applicable) at the time of such designation. That designation shall will only be permitted if the Investment and/or incurrence of Indebtedness would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Supplemental Indenture, any Investments made in such Subsidiary will be deemed to be an Investment made in a Restricted Subsidiary of the Company as of such date (and increase the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by the Company), and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Borrower may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if in accordance with the definition of “Unrestricted Subsidiary”; provided that designation would not cause a Default or (i) immediately before and after giving effect to such designation, no Event of Default shall have occurred and be continuing, (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 7.11 (whether or not such covenant is applicable at such time in accordance with its terms), and (iii) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” as defined in any of the Senior Notes; provided that (x) solely with respect to the Designated Subsidiaries the foregoing clause (iii) shall not apply for a period commencing on the date the Designated Subsidiaries are designated as “Restricted Subsidiaries” as defined in any of the Senior Notes and ending on the date that is 30 days thereafter, and (y) the Administrative Agent shall have the right, and the other requirements for Borrower hereby expressly authorizes the Administrative Agent, to make a written list of Designated Subsidiaries available to Lenders on the “Private Side Information” portion of the Platform. 125 All outstanding Investments owned by the Borrower and its Restricted Subsidiaries in the designated Unrestricted Subsidiary will be treated as an Investment by the Borrower or such Restricted Subsidiary, as applicable, made at the time of the designation. The amount of all such outstanding Investments will be the aggregate fair market value of such Investments at the time of the designation. The designation will not be permitted if such Investment would not be permitted under Section 7.02 at that time and if such Restricted Subsidiary does not otherwise meet the definition of an Unrestricted Subsidiary. Any designation of a Subsidiary of the Borrower as an Unrestricted Subsidiary shall be evidenced to the Administrative Agent by delivering to the Administrative Agent a certified copy of the board resolution of the Borrower giving effect to such designation prescribed and a certificate signed by a Responsible Officer of the Borrower certifying that such designation complied with the foregoing conditions and the conditions set forth in the definition of “Unrestricted Subsidiary” are satisfied. If a Restricted and was permitted by this Section 6.17, provided, however, (i) no Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings and its Restricted Subsidiaries in the Subsidiary properly may be designated as an Unrestricted Subsidiary if such designated Unrestricted Subsidiary will own any IP Rights and the failure of the Borrower or any of its Restricted Subsidiaries to own such IP Rights could reasonably be expected to have a Material Adverse Effect and (ii) neither the Borrower nor any of its Restricted Subsidiaries shall be permitted to contribute any IP Rights to an Unrestricted Subsidiary if (x) the failure by the Borrower or any of its Restricted Subsidiaries to own such IP Rights could reasonably be expected to have a Material Adverse Effect or (y) after giving effect to such contribution the Borrower would not be in pro forma compliance with the covenant set forth in Section 7.11 whether or not such covenant is applicable at such time in accordance with its terms. If, at any time, any Unrestricted Subsidiary would fail to meet any of the requirements of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Agreement and (1) any Indebtedness of such Subsidiary, (2) any Liens of such Subsidiary and (3) any Investments of such Subsidiary, in each case shall be deemed to be an Investment made incurred by a Restricted Subsidiary of the Borrower as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 or represent Permitted such date and, if such Liens, Investments, or Indebtedness are not permitted to be incurred as determined by Holdings. That designation of such date under Section 7.01, Section 7.02 or Section 7.03, as applicable, the Borrower shall only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets the definition in default of an Unrestricted Subsidiarysuch Section 7.01, Section 7.02 or Section 7.03, as applicable. The Board of Directors of Holdings Borrower may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Subsidiary; provided that such designation will shall be deemed to be an incurrence incurrence, on the date of Indebtedness designation, of Indebtedness, Liens and Investments by a Restricted Subsidiary of Holdings the Borrower of any outstanding Indebtedness Indebtedness, Liens and Investments of such Unrestricted Subsidiary, Subsidiary and such designation will shall only be permitted if (1) such Liens are permitted under Section 7.01, such Investments are permitted under Section 7.02, and such Indebtedness is permitted under Section 8.03, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, 7.03; and (2) no Default (other than a Reporting Default) or Event of Default would shall have occurred and be continuing; and provided further, however, if any such Subsidiaries are Designated Subsidiaries, then the foregoing proviso shall not apply to any such Designated Subsidiaries and, notwithstanding anything contained herein or in existence the other Loan Documents to the contrary, such Designated Subsidiaries shall not be subject to the terms and provisions of this Agreement (including, without limitation, Section 6.11 and Section 6.15) and the other Loan Documents during the period commencing on the date the Designated Subsidiaries are designated as “Restricted Subsidiaries” hereunder and ending on the date that is 30 days thereafter, and on such thirtieth day any such Designated Subsidiary that is a Restricted Subsidiary at such time shall be deemed, for purposes of Sections 7.01, 7.02 and 7.03, to have incurred all Liens, Investments, and Indebtedness of such Designated Subsidiary then outstanding. 126 The following entities have previously been designated as Unrestricted Subsidiaries under this Agreement and remain Unrestricted Subsidiaries as of the Closing Date: 8tx Xxxxxx Xood & Provisions, Inc., a Missouri corporation, Active Nutrition International GmbH, a German entity, Agricore United Holdings Inc., a Delaware corporation, American Blanching Company, a Georgia corporation, Attune Foods, LLC, a Delaware limited liability company, BellRing Brands, Inc., a Delaware corporation, BellRing Brands, LLC, a Delaware limited liability company, Dakota Growers Pasta Company, Inc., a North Dakota corporation, DNA Dreamfields Company, LLC, an Ohio limited liability company, Dymatize Enterprises, LLC, a Delaware limited liability company, GB Acquisition USA, Inc., a Washington corporation, Golden Acquisition Sub, LLC, a Delaware limited liability company, Golden Boy Nut Corporation, a Delaware corporation, Golden Nut Company (USA) Inc., a Washington corporation, Nuts Distributor of America Inc., a Washington corporation, Premier Nutrition Company, LLC, a Delaware limited liability company, Primo Piatto, Inc., a Minnesota corporation, Golden Boy Foods Ltd., a British Columbia corporation, PHI Acquisition GP ULC, a British Columbia unlimited liability company, PHI Acquisition LP ULC, a British Columbia unlimited liability company, PHI Acquisition Limited Partnership, a British Columbia limited partnership, Supreme Protein, LLC, a Delaware limited liability company, TA/DEI-A Acquisition Corp., a Delaware corporation, and any direct or indirect now or hereafter created or acquired Subsidiary of any of the foregoing. The foregoing sentence does not prohibit or limit in any respect the ability of the Borrower to designate any of the foregoing Persons as Restricted Subsidiaries and thereafter re-designate any or all of such designationPersons as Unrestricted Subsidiaries, in each case, subject to the terms and conditions of this Section 6.17.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Borrower may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default Default; provided that in no event shall there be any Unrestricted Subsidiaries on or Event of Default and immediately following the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedClosing Date. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by Holdings the Borrower and its Restricted Subsidiaries in the Subsidiary properly so designated as an Unrestricted (after giving effect to any sale of Equity Interests of such Subsidiary in connection with such designation) will be deemed to be an Investment made as of the time of the such designation and will either reduce the amount available for Restricted Payments under Section 6.07(a) or reduce the first paragraph amount available for future Investments under one or more clauses of Section 8.01 or represent the definition of "Permitted Investments, as determined by Holdings. ." That designation shall only be permitted if the such Investment would be permitted at that time and if the such Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Borrower may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Subsidiary; provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Borrower of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will shall only be permitted if (1) such Indebtedness is permitted under Section 8.036.06, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. At the time the Notes are originally issued, all of the Subsidiaries of the Company will be Restricted Subsidiaries. The Board of Directors of Holdings the Company may designate any Restricted Subsidiary of Holdings (other than the Borrower) Company to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings the Company is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be either an Investment made as of the time of the designation and that will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 4.07 or represent Permitted Investments, as determined by Holdingsthe Company. That designation shall will only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Company may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of HoldingsSubsidiary, provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.034.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and Section 4.12 and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09, the Company will be in default of such covenant. The foregoing not withstanding, following the termination of certain covenants pursuant to Section 4.19, the Company may not designate or redesignate any of its Subsidiaries pursuant to this Section 4.18.

Designation of Restricted and Unrestricted Subsidiaries. Upon the completion of the Oxford Acquisition and the Initial Oxford Dropdown pursuant to the Acquisition Agreement and the Contribution Agreement, respectively, on the terms described in the Offering Memorandum in all material respects Oxford GP and its Subsidiaries, including the Oxford MLP, will be automatically and without any further action by our Board of Directors designated as Unrestricted Subsidiaries under this Indenture. The Board of Directors of Holdings the Issuer may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Holdings the Issuer and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Issuer. That The designation shall of a Restricted Subsidiary as an Unrestricted Subsidiary will only be permitted if the Investment would be permitted under the terms of this Indenture at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. Any designation of a Subsidiary of the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions of this Section 4.17 and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements of this Section 4.17 to be an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Issuer as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Issuer will be in default of such covenant. The Board of Directors of Holdings the Issuer may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Issuer; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) (x) the Issuer could incur such Indebtedness is permitted under pursuant to Section 8.034.09(a) hereof, calculated or (y) the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries would be greater than such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such designation, in each case on a pro forma basis as if taking into account such designation had occurred at the beginning of the four-quarter reference period, designation; and (2) no Default (other than a Reporting Default) or Event of Default would immediately be in existence following as a consequence of such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings may designate any Restricted Subsidiary of Holdings (other than the Borrower) Company to be an Unrestricted Subsidiary if that designation (a) the Subsidiary to be so designated does not own any Capital Stock or Debt of, or own or hold any Lien on any Property of, the Company or any other Restricted Subsidiary, (b) the Subsidiary to be so designated is not obligated under any Debt, Lien or other obligation that, if in default, would not cause result (with the passage of time or notice or otherwise) in a Default default on any Debt of the Company or Event of Default any Restricted Subsidiary and (c) either (i) the other requirements for Subsidiary to be so designated has total assets of $1,000 or less or (ii) such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfied. If is effective immediately upon such entity becoming a Restricted Subsidiary of Holdings is the Company or any Restricted Subsidiary. Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the aggregate Fair Market Value Company or of all outstanding Investments owned any Wholly Owned Subsidiary will be classified as a Restricted Subsidiary, provided that the requirements set forth in clauses (x) and (y) of the immediately following paragraph would be satisfied after giving pro forma effect to such classification. Any Person not permitted by Holdings and its the terms of the immediately preceding sentence to be classified as a Restricted Subsidiaries in the Subsidiary properly designated shall be automatically classified as an Unrestricted Subsidiary will be deemed to be an Investment made Subsidiary. Except as of the time of the designation and will reduce the amount available for Restricted Payments under provided in the first paragraph sentence of Section 8.01 or represent Permitted Investmentsthis paragraph, no Restricted Subsidiary may be redesignated as determined by Holdings. That designation shall only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdingsif, provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.03, calculated on a immediately after giving pro forma basis as if effect to such designation had occurred designation, (x) the Company could Incur at the beginning least $1.00 of the four-quarter reference period, additional Debt pursuant to Section 4.05(a) and (2y) no Default (other than a Reporting Default) or Event of Default shall have occurred and be continuing or would result therefrom. Any such designation or redesignation by the Board of Directors will be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such designation or redesignation and an Officers' Certificate (a) certifying that such designation or redesignation complies with the foregoing provisions and (b) giving the effective date of such designation or redesignation, such filing with the Trustee to occur within 45 days after the end of the fiscal quarter of the Company in existence following which such designationdesignation or redesignation is made (or, in the case of a designation or redesignation made during the last fiscal quarter of the Company's fiscal year, within 90 days after the end of such fiscal year).

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings the Borrower may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default Default; provided that in no event shall there be any Unrestricted Subsidiaries on or Event of Default and immediately following the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedClosing Date. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by Holdings the Borrower and its Restricted Subsidiaries in the Subsidiary properly so designated as an Unrestricted (after giving effect to any sale of Equity Interests of such Subsidiary in connection with such designation) will be deemed to be an Investment made as of the time of the such designation and will either reduce the amount available for Restricted Payments under Section 6.07(a) or reduce the first paragraph amount available for future Investments under one or more clauses of Section 8.01 or represent the definition of “Permitted Investments, as determined by Holdings. .” That designation shall only be permitted if the such Investment would be permitted at that time and if the such Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of Holdings the Borrower may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, Subsidiary; provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Borrower of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will shall only be permitted if (1) such Indebtedness is permitted under Section 8.036.06, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors of Holdings the Borrower may designate any Restricted Subsidiary of Holdings (other than the Borrower) Borrower to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings the Borrower is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by Holdings the Borrower and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 8.01 7.01 or represent Permitted Investments, as determined by Holdingsthe Borrower. That designation shall only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary and such Subsidiary: (i) except to the extent permitted by subclause (b)(ii) of the definition of “Permitted Business Investments,” has no Indebtedness other than Non-Recourse Debt owing to any Person other than the Borrower or any of its Restricted Subsidiaries; (ii) is not party to any agreement, contract, arrangement or understanding with the Borrower or any Restricted Subsidiary of the Borrower unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Borrower; (iii) is a Person with respect to which neither the Borrower nor any of its Restricted Subsidiaries has any direct or indirect obligation (1) to subscribe for additional Equity Interests or (2) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and (iv) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Borrower or any of its Restricted Subsidiaries. The Board of Directors of Holdings may If, at any time designate time, any Unrestricted Subsidiary of Holdings would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be a Restricted an Unrestricted Subsidiary for purposes of Holdings, provided that this Agreement and any Indebtedness of such designation Subsidiary will be deemed to be an incurrence of Indebtedness incurred by a Restricted Subsidiary of Holdings of any outstanding Indebtedness the Borrower as of such Unrestricted Subsidiarydate and, and such designation will only be permitted if (1) such Indebtedness is not permitted to be incurred as of such date under Section 8.037.03, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (2) no Default (other than a Reporting Default) or Event of Default would Borrower will be in existence following default of such designation.covenant..

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of Holdings Issuer may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default and the other requirements for such designation prescribed in the definition of “Unrestricted Subsidiary” are satisfiedDefault. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by Holdings the Issuer and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments as described in Section 3.3 herein or under one or more clauses of the first paragraph definition of Section 8.01 or represent Permitted Investments, as determined by Holdingsthe Issuer. That designation shall will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board Issuer may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of Directors a Subsidiary of Holdings the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by an Officer’s Certificate certifying that such designation complies with the preceding conditions and was permitted by Section 3.3 herein. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Issuer as of such date and, if such Indebtedness is not permitted to be incurred as of such date by Section 3.2 herein, the Issuer will be in default of such covenant. The Issuer may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of Holdings, the Issuer; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings the Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.033.2 herein, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period, ; and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation. Any such designation by the Issuer shall be evidenced to the Trustee by an Officer’s Certificate certifying that such designation complies with the preceding conditions.