Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower may designate any Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, to be an Unrestricted Subsidiary if it meets the following qualifications: (i) (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property; (ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08; (iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08; (iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and (v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein. (b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default. (c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary, (i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time; (ii) all Investments therein previously charged under Section 6.08 will be credited thereunder; (iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time; (iv) it will be automatically released at that time from its Guaranty, if any; and (v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary. (d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b), (i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable; (ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and (iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary. (e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 4 contracts
Samples: Revolving Credit Agreement (Block, Inc.), Revolving Credit Agreement (Block, Inc.), Revolving Credit Agreement (Square, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer Directors of the Borrower Issuer or any direct or indirect parent of the Issuer may designate any Subsidiary of the Borrower, Issuer (including a any existing Subsidiary and any newly acquired or created newly formed Subsidiary of the Borrower, Issuer) to be an Unrestricted Subsidiary if it meets unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on any property of, the following qualificationsIssuer or any other Subsidiary of the Issuer that is not a Subsidiary of the Subsidiary to be so designated; provided, however, that the Subsidiary to be so designated and its Subsidiaries do not at the time of designation have any Indebtedness pursuant to which the lender has recourse to any of the assets of the Issuer or any of its Restricted Subsidiaries; provided, further, however, that either:
(i) (A) such the Subsidiary does not own any Equity Interest to be so designated has total consolidated assets of the Borrower $1,000 or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;less; or
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted if such Subsidiary of the Borrower is has consolidated assets greater than $1,000, then such designation would be permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein3.4.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) The Board of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer Directors of the Borrower Issuer or any direct or indirect parent of the Issuer may designate an any Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.Subsidiary; provided, however, that immediately after giving effect to such designation:
(c1) Upon the Issuer could Incur $1.00 of additional Indebtedness as Ratio Debt or (2) the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such designation, in each case on a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurredPro Forma Basis taking into account such designation, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 4 contracts
Samples: Indenture (Mattel Inc /De/), Indenture (Mattel Inc /De/), Indenture (Mattel Inc /De/)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the Parent (other than the Borrower), including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower any Obligor or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual PropertySubsidiary;
(ii) the Parent would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate fair market value of all Investments of the Obligors and their Restricted Subsidiaries in such Subsidiary;
(iii) any Guarantee guarantee or other credit support thereof by the Borrower any Obligor or any other Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.086.06;
(iiiiv) neither the Borrower nor any Restricted Subsidiary none of the Borrower Obligors or their respective Restricted Subsidiaries has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.086.06;
(ivv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(vvi) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower Obligors or a their respective Restricted Subsidiary of the BorrowerSubsidiaries. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i5.12(a)(i), (a)(ii5.12(a)(iii), (a)(iii), (a)(iv5.12(a)(iv) or (a)(v5.12(a)(vi) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12). The board Board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Investments of the Obligors and their respective Restricted Subsidiaries therein (valued at the Borrower’s proportional share of the fair market value of its assets less liabilities) will be deemed made at that time;
(ii) all existing Indebtedness of the Borrower any Obligor or a its Restricted Subsidiary of the Borrower Subsidiaries held by it will be deemed issued or incurred, as applicable, incurred at that time, and all Liens on property of the Borrower any Obligor or a its Restricted Subsidiary of the Borrower securing its obligations Subsidiaries held by it will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower any Obligor or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically is released at that time from the Loan Documents to which it is a party and all related security interests on its Guaranty, if anyproperty shall be released; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary Indebtedness will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable6.01;
(ii) Investments therein previously charged under Section 6.06 will be credited thereunder;
(iii) if it is a Material Domestic Restricted Subsidiary and a Wholly-Owned Subsidiary of the Parent (unless it is an Excluded Subsidiary), it shall be required to become a Guarantor pursuant to Section 5.10this Agreement; and
(iiiiv) it will thenceforward be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors of a Subsidiary as an Unrestricted Subsidiary or a Restricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to filing with the Administrative Agent a copy of the resolutions of the Board of Directors giving effect to the designation and a certificate of a Responsible Officer an officer of the Borrower Parent certifying that the designation complied with the foregoing provisions.
Appears in 4 contracts
Samples: Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.), Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.), Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower may designate any Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, to be Unless designated as an Unrestricted Subsidiary if it meets on Schedule 7.14 as of the following qualifications:
date hereof or thereafter, in compliance with Section 9.19(b) or (i) (A) such d), any Person that becomes a Subsidiary does not own any Equity Interest of the Borrower or any other of its Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;Subsidiaries shall be classified as a Restricted Subsidiary.
(iib) any Guarantee or other credit support The Borrower may designate by written notification thereof by to the Borrower or Administrative Agent, any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary Subsidiary, including a newly or to maintain be formed or preserve its financial condition newly or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designationbe acquired Subsidiary, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it (i) prior, and immediately after giving effect, to such designation, neither a Default nor a Borrowing Base Deficiency would exist and (ii) such designation is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain deemed to be an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as Investment in an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value as of the date of such designation of the Borrower’s or and its Restricted Subsidiaries’ direct ownership interests in such Subsidiary and such Investment would be permitted to be made at the applicable time of such designation under Section 9.05(m). Except as provided in this Section 9.19(b), no Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously may be designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections Subsidiary.
(a)(i), (a)(ii), (a)(iii), (a)(ivc) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an any Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
immediately after giving effect to such designation, (i) all existing Indebtedness the representations and warranties of the Borrower or a and its Restricted Subsidiary Subsidiaries contained in each of the Borrower held by it will be deemed issued or incurred, Loan Documents are true and correct in all material respects on and as applicable, at that time, of such date as if made on and all Liens on property as of the Borrower or a Restricted Subsidiary date of the Borrower securing its obligations will be deemed incurred at that time;
such redesignation (or, if stated to have been made expressly as of an earlier date, were true and correct in all material respects as of such date), (ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
no Default exists, (iii) all existing transactions between it and the Borrower complies with the requirements of Section 8.14(b) and Section 8.18 and (iv) the Borrower and/or one or any more Restricted Subsidiary Subsidiaries owns all of the Borrower (including Investments of the Borrower or any Restricted Subsidiary Equity Interests in such Subsidiary) will . Any such designation shall be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject treated as a cash dividend to the provisions Borrower in an amount equal to the lesser of this Agreement the fair market value of the Borrower’s and its Restricted Subsidiaries’ direct ownership interests in such Subsidiary or the amount of the Borrower’s and its Restricted Subsidiaries’ aggregate investment previously made for purposes of the limitation on Investments under Section 9.05(m). Upon the designation of an Unrestricted Subsidiary as a Restricted Subsidiary, all Investments previously made in such Unrestricted Subsidiary shall no longer be counted in determining the limitation on Investments under Section 9.05(m).
(d) Upon Each Subsidiary of an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will shall automatically be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, designated as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted an Unrestricted Subsidiary.
(e) Any Upon designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Restricted Subsidiary as an Unrestricted Subsidiary after in compliance with Section 9.19(b), (i) such Subsidiary shall be automatically released from all obligations, if any, under the Effective Date will be evidenced Loan Documents, including the Guaranty Agreement and all other applicable Security Instruments and (ii) all Liens granted pursuant to the Administrative Agent by promptly delivering to Guaranty Agreement and all other applicable Security Instruments on the Administrative Agent a certificate of a Responsible Officer of Property of, and the Borrower certifying that the designation complied with the foregoing provisionsEquity Interests in, such Unrestricted Subsidiary shall be automatically released.
Appears in 3 contracts
Samples: Senior Secured Revolving Credit Agreement (Viper Energy Partners LP), Senior Secured Revolving Credit Agreement (Viper Energy Partners LP), Senior Secured Revolving Credit Agreement (Viper Energy Partners LP)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer Directors of the Borrower Company may designate any Subsidiary of the Borrowerother than a Designated Subsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualificationsqualifications and the designation would not cause a Default:
(i) (A) such Such Subsidiary does not own any Equity Interest Capital Stock of the Borrower Company or any other Restricted Subsidiary (other than any Subsidiary of the Borrower and (B) such Subsidiary does not own that is also being designated to be an Unrestricted Subsidiary) or hold any Material Intellectual PropertyDebt of, or any Lien on any property of, the Company or any Restricted Subsidiary (other than any Subsidiary of such Subsidiary that is also being designated to be an Unrestricted Subsidiary);
(ii) At the time of the designation, the Company’s or any Restricted Subsidiary’s Investment in the Subsidiary would be permitted under Section 4.07 as provided in clause (c)(i) below;
(iii) To the extent the Debt of the Subsidiary is not Non-Recourse Debt, any Guarantee or other credit support thereof by the Borrower Company or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or 4.06 and Section 6.084.07;
(iiiiv) neither The Subsidiary is not party to any transaction or arrangement with the Borrower Company or any Restricted Subsidiary that would not be permitted under Section 4.10; and
(v) Neither the Company nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results results, except to the extent permitted by Section 6.01 or 4.06 and Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower4.07. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bparagraph (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) (i) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections paragraph (a)(i), (a)(ii), (a)(iii), (a)(iva) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection paragraph (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default).
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 2 contracts
Samples: Indenture (Eastman Kodak Co), Indenture (Eastman Kodak Co)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Unless designated as an Unrestricted Subsidiary on Schedule 7.14 as of directors (the date hereof or a committee thereofthereafter, in compliance with Section 9.17(b) or chief financial officer of the Borrower may designate Section 9.17(d), any Person that becomes a Subsidiary of the Parent or any of its Restricted Subsidiaries shall be classified as a Restricted Subsidiary.
(b) The Parent may designate by written notification thereof to the Administrative Agent, any Restricted Subsidiary (other than the Borrower), including a newly acquired or created Subsidiary of the Borrower, to be formed or newly or to be acquired Subsidiary, as an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower prior, and (B) such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation immediately after giving effect, to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred would exist and (ii) such designation is deemed to be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Investment in an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value as of the Borrowerdate of such designation of the Parent’s or and its Restricted Subsidiaries’ direct and indirect ownership interest in such Subsidiary and such Investment would be permitted to be made at the applicable time of such designation under Section 9.05. Except as provided in this Section 9.17, no Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously may be designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections Subsidiary.
(a)(i), (a)(ii), (a)(iii), (a)(ivc) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Parent may designate an any Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
after giving effect to such designation, (i) all existing Indebtedness the representations and warranties of the Parent, the Borrower or a and the other Restricted Subsidiary Subsidiaries contained in each of the Borrower held by it will be deemed issued or incurred, Loan Documents are true and correct in all material respects on and as applicable, at that time, of such date as if made on and all Liens on property as of the Borrower or a Restricted Subsidiary date of the Borrower securing its obligations will be deemed incurred at that time;
such redesignation (or, if stated to have been made expressly as of an earlier date, were true and correct in all material respects as of such date), (ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
no Default exists, (iii) all existing transactions between it the Parent and the Borrower comply with the requirements of Section 8.14(b) and Section 8.16 and (iv) the Parent directly or any Restricted Subsidiary indirectly owns all of the Borrower (including Investments of the Borrower or any Restricted Subsidiary Equity Interests in such Subsidiary) will . Any such designation shall be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject treated as a cash dividend to the provisions Parent or the Borrower in an amount equal to the lesser of this Agreement (A) the fair market value of the Borrower’s and its Restricted Subsidiaries’ direct ownership interests in such Subsidiary and (B) the amount of the Parent or the Borrower’s and its Restricted Subsidiaries’ aggregate investment previously made for purposes of the limitation on Investments under Section 9.05. Upon the designation of an Unrestricted Subsidiary as a Restricted Subsidiary, all Investments previously made in such Unrestricted Subsidiary shall no longer be counted in determining the limitation on Investments under Section 9.05(k).
(d) Upon Each Subsidiary of an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will shall automatically be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, designated as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted an Unrestricted Subsidiary.
(e) Any Upon designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Restricted Subsidiary as an Unrestricted Subsidiary after in compliance with this Section 9.17, (i) such Subsidiary shall be automatically released from all obligations, if any, under the Effective Date will be evidenced Loan Documents, including the Guaranty and Security Agreement and all other applicable Security Instruments and (ii) all Liens granted pursuant to the Administrative Agent by promptly delivering to Guaranty and Security Agreement and all other applicable Security Instruments on the Administrative Agent a certificate of a Responsible Officer of Property of, and the Borrower certifying that the designation complied with the foregoing provisionsEquity Interests in, such Unrestricted Subsidiary shall be automatically released.
Appears in 2 contracts
Samples: Credit Agreement (Rattler Midstream Lp), Credit Agreement (Rattler Midstream Lp)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer Directors of the Borrower Company may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualificationsqualifications and the designation would not cause a Default:
(i) (A) such Such Subsidiary does not own any Equity Interest Capital Stock of the Borrower Company or any other Restricted Subsidiary (other than any Subsidiary of the Borrower and (B) such Subsidiary does not own that is also being designated to be an Unrestricted Subsidiary) or hold any Material Intellectual PropertyDebt of, or any Lien on any property of, the Company or any Restricted Subsidiary (other than any Subsidiary of such Subsidiary that is also being designated to be an Unrestricted Subsidiary);
(ii) At the time of the designation, the Investment by the Company and its Restricted Subsidiaries in such Subsidiary would be permitted under Section 4.07 as provided in clause (i) of Section 4.19(c);
(iii) To the extent the Debt of the Subsidiary is not Non-Recourse Debt, any Guarantee or other credit support thereof by the Borrower Company or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or 4.06 and Section 6.084.07;
(iiiiv) neither The Subsidiary is not party to any transaction or arrangement with the Borrower Company or any Restricted Subsidiary that would not be permitted under Section 4.10; and
(v) Neither the Company nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results results, except to the extent permitted by Section 6.01 or 4.06 and Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower4.07. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b4.19(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) (i) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(ivSection 4.19(a) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default4.19(d).
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 2 contracts
Samples: Indenture (Eastman Kodak Co), Indenture (Eastman Kodak Co)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower Company may designate any Subsidiary of the Borrower, including to be a newly acquired or created Restricted Subsidiary of the Borrower, and may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if it meets by giving written notice to each holder of Notes that the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest Board of Directors of the Borrower 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 have any continuing Investment in the Company or any other Restricted Subsidiary of the Borrower and (Bb) such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no provided that, after the Release Date until the New Security 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 may be which has been designated as an Unrestricted Subsidiary if it is and which has then been redesignated a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness Restricted Subsidiary, in each case in accordance with the provisions of the Borrower or first sentence of this Section 10.12, shall not at any time thereafter be redesignated an Unrestricted Subsidiary without the prior written consent of the Required Holders. Any Unrestricted Subsidiary which has been designated a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain and which has then been redesignated an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after in each case in accordance with the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value provisions of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) first sentence of this Section 5.12 will 10.12, shall not at any time thereafter be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be redesignated a Restricted Subsidiary if no Event of Default exists at without the time prior written consent of the designation and the designation would not cause an Event of DefaultRequired Holders.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 2 contracts
Samples: Note Purchase Agreement (New Jersey Resources Corp), Note Purchase Agreement (New Jersey Resources Corp)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board At any time after repayment in full, and termination of directors (or a committee thereof) or chief financial officer all commitments under, the ABL Credit Agreement, the Board of the Borrower Directors may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual PropertySubsidiary;
(ii) the Borrower would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate fair market value of all Investments of the Borrower or its Restricted Subsidiaries in such Subsidiary;
(iii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 6.1 or Section 6.086.7;
(iiiiv) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 6.1 or Section 6.086.7;
(ivv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and;
(vvi) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary Subsidiary; and
(vii) immediately after such designation on a Pro Forma Basis, the Consolidated Total Leverage Ratio, as of the Borrowerlast day of the fiscal quarter most recently ended for which financial statements are required to be delivered pursuant to Section 5.1, shall not exceed the maximum Consolidated Total Leverage Ratio permitted under Section 6.12 for such period. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(va)(vi) of this Section 5.12 5.14 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12). The board Board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Investments of the Borrower and the Restricted Subsidiaries therein (valued at the Borrower’s proportional share of the fair market value of its assets less liabilities) will be deemed made at that time;
(ii) all existing Equity Interest or Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, incurred at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations held by it will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically is released at that time from the Guaranty and the Security Agreement and all related security interests on its Guaranty, if anyproperty shall be released; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b5.14(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary Indebtedness will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable6.1;
(ii) if Investments therein previously charged under Section 6.7 will be credited thereunder;
(iii) it is a Material Domestic Restricted Subsidiary, it shall may be required to become a Guarantor pursuant to Section 5.10; and
(iiiiv) it will thenceforward be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors of a Subsidiary as an Unrestricted Subsidiary after the Effective Closing Date will be evidenced to the Administrative Agent by promptly delivering to filing with the Administrative Agent a copy of the resolutions of the Board of Directors giving effect to the designation and a certificate of a Responsible Officer an officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 2 contracts
Samples: Revolving Credit and Guaranty Agreement (Fitbit Inc), Revolving Credit and Guaranty Agreement (Fitbit Inc)
Designation of Restricted and Unrestricted Subsidiaries. (aA) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the Borrower, Issuer (including a any newly acquired or created Subsidiary of the Borrower, newly formed Subsidiary) to be an Unrestricted Subsidiary if it meets unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or holds any Lien on any property of, the following qualifications:
(i) Issuer or any other Subsidiary of the Issuer that is not a Subsidiary of the Subsidiary to be so designated; provided, however, that either (A) the Subsidiary to be so designated has total assets of one thousand dollars ($1,000) or less or (B) if such Subsidiary does not own has assets greater than one thousand dollars ($1,000), such designation would be permitted under Section 4.03.
(B) The Board of Directors may designate any Equity Interest Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that immediately after giving effect to such designation (A) the Issuer could Incur one dollar ($1.00) of the Borrower or any other Restricted Subsidiary additional Indebtedness pursuant to Section 4.02(A) (irrespective of the Borrower whether such Section 4.02(A) remains in effect) and (B) such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from continuing. Any such designation; and
(v) no Subsidiary may designation by the Board of Directors shall be designated as an Unrestricted Subsidiary if it is evidenced to the Trustee by promptly filing with the Trustee a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness copy of the Borrower or a Restricted Subsidiary resolution of the Borrower. Once so designated, the Subsidiary will remain Board of Directors giving effect to such designation and an Unrestricted Subsidiary, subject to Officer’s Certificate certifying that such designation complies with this Section 5.12(b4.11(B). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(bi) A Subsidiary previously designated as an Unrestricted Subsidiary which at any time fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(ivSection 4.11(A) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection Section 4.11(E).
(dii) The Board of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of a Default.
(ciii) Once designated as an Unrestricted Subsidiary, such Unrestricted Subsidiary will remain an Unrestricted Subsidiary, subject to Section 4.11(F).
(D) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,:
(i) all existing Indebtedness Investments of the Borrower or a Issuer and the Restricted Subsidiary Subsidiaries therein (valued at the Issuer’s proportional share of the Borrower held by it fair market value of its assets less liabilities) will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred made at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower Issuer or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iviii) it will be automatically such Unrestricted Subsidiary is released at that time from its Guaranty, if any; and
(viv) it such Unrestricted Subsidiary will cease to be subject to the provisions of this Agreement the Indenture as a Restricted Subsidiary.
(dE) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),Subsidiary:
(i) all of its Indebtedness, Liens Indebtedness and Investments of such Subsidiary Disqualified Stock or Preferred Stock will be deemed incurred Incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable4.02;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall Investments therein previously charged under Section 4.03 will be required to become a Guarantor pursuant to Section 5.10; andcredited thereunder;
(iii) it may be required to issue a Guaranty Agreement of the Notes pursuant to Section 4.09; and
(iv) it will thenceforward be subject to the provisions of this Agreement the Indenture as a Restricted Subsidiary.
(eF) Any designation by the board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors of a Subsidiary as an a Restricted Subsidiary or Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent Trustee by promptly delivering filing with the Trustee a copy of the Board Resolution giving effect to the Administrative Agent a certificate of a Responsible Officer of the Borrower designation and an Officer’s Certificate certifying that the designation complied with the foregoing provisions.
Appears in 2 contracts
Samples: Supplemental Indenture (Kennedy-Wilson Holdings, Inc.), Supplemental Indenture (Kennedy-Wilson Holdings, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower may designate Designate any Restricted Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, to be an Unrestricted Subsidiary only if it meets the following qualifications:(and any other attempted designation shall be null and void):
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary could make the Investment which is deemed to occur upon such designation in accordance with Section 6.05 equal to the appropriate Fair Market Value of all outstanding Investments owned by the Borrower and (B) the Restricted Subsidiaries in such Subsidiary does not own any Material Intellectual Propertyat the time of such designation;
(ii) any Guarantee or other credit support thereof by the Borrower or any such Restricted Subsidiary meets the definition of the Borrower is permitted under Section 6.01 or Section 6.08an “Unrestricted Subsidiary”;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition designation would not constitute or cause it to achieve specified levels (with or without the passage of operating results except to the extent permitted by Section 6.01 time) a Default or Section 6.08;
(iv) immediately before and after such designation, Event of Default or no Default or Event of Default shall have occurred and would be continuing or would result from in existence following such designation; and;
(viv) no the Borrower delivers to the Administrative Agent a certified copy of a resolution of the Board of Directors of the Borrower giving effect to such designation and a Responsible Officer's Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 6.06. In connection with the occurrence of a Contract Unwind Trigger, the Borrower may cause an applicable Restricted Subsidiary may to be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” meets the conditions set forth in this clause (a) of Section 5.16, in each case, as soon as practicable thereafter but not later than 20 Business Days or a “guarantor” (or any similar designation) as soon as practicable thereafter where applicable local law requires additional time for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the compliance with applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment thereinlegal requirements.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Designate any Unrestricted Subsidiary to be a Restricted Subsidiary only if no Event of Default exists at the time of the (and any other attempted designation shall be null and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,void):
(i) all existing Indebtedness the Borrower and the Restricted Subsidiaries could incur the Debt which is deemed to be incurred upon such designation under Section 6.02, equal to the total Debt of such Subsidiary calculated on a pro forma basis as if such designation had occurred on the first day of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that timefour-quarter reference period;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower designation would not constitute or any Restricted Subsidiary cause a Default or Event of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10Default; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering delivers to the Administrative Agent a certificate certified copy of a Responsible Officer resolution of the Board of Directors of the Borrower giving effect to such designation and an Officers’ Certificate certifying that the such designation complied with the foregoing provisionspreceding conditions, including the incurrence of Debt under Section 6.02. Upon the occurrence of a Contract Winning Trigger, the Borrower shall be required to designate each applicable Subsidiary as a Restricted Subsidiary and a Guarantor and pledge its assets and property as Collateral pursuant to Section 5.12, and shall be required to comply with the conditions set forth in this clause (b) in connection therewith.
Appears in 2 contracts
Samples: Credit Facility Agreement, Credit Facility Agreement
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower may designate any Restricted Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, to be an Unrestricted Subsidiary if it meets in accordance with the following qualifications:
(i) (A) definition of “Unrestricted Subsidiary”; provided that, immediately after giving effect to such Subsidiary does not own any Equity Interest of designation, the Borrower would be in pro forma compliance with the financial covenant set forth in Section 7.11, whether or any other Restricted Subsidiary of the Borrower and (B) not such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower covenant is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designationapplicable, no Default or Event of Default shall have occurred and (iii) either (1) the Borrower could incur $1.00 of additional Indebtedness pursuant to Section 7.03(a) or (2) (A) the Fixed Charge Coverage Ratio for the Borrower and its Restricted Subsidiaries would be continuing equal to or greater than such ratio immediately prior to such designation or (B) the Consolidated Leverage Ratio for the Borrower and its Restricted Subsidiaries would result from be equal to or less than such designation; and
ratio immediately prior to such designation In addition, (va) no any Unrestricted Subsidiary must be a Person of which shares of the Equity Interests (including partnership interests) entitled to cast at least a majority of the votes that may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” cast by all Equity Interests having ordinary voting power for the election of directors or a “guarantor” (other governing body are owned, directly or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of indirectly, by the Borrower. Once so designated, the Subsidiary (b) such designation will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary be treated as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a such Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists as applicable, made at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted each of (I) the Subsidiary becoming an Unrestricted Subsidiary,
to be so designated and (iII) all existing its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender with respect to such Indebtedness has recourse to any of the assets of the Borrower or any Restricted Subsidiary. 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 7.06 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 and a certificate signed by an Officer of the Borrower certifying that such designation complied with the foregoing conditions and the conditions set forth in the definition of “Unrestricted Subsidiary” and was permitted by this Section 6.15. 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 incurred by a Restricted Subsidiary of the Borrower held by it will as of such date. The Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed issued or incurredto be an incurrence, as applicableon the date of designation, at that timeof Indebtedness, Liens and all Liens on property of the Borrower or Investments by a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or of any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its outstanding Indebtedness, Liens and Investments of such Unrestricted Subsidiary will and such designation shall only be deemed incurred at that time for purposes permitted if as of Section 6.01 such date, (1) such Indebtedness, Liens and Section 6.02Investments are permitted and (2) no Event of Default shall have occurred and be continuing. The Specified Subsidiaries are designated as Unrestricted Subsidiaries under this Agreement as of the Closing Date, 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 applicable;
(ii) if it is a Material Domestic Restricted SubsidiarySubsidiaries and thereafter re-designate any or all of such Persons as Unrestricted Subsidiaries, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be in each case, subject to the provisions terms and conditions of this Agreement as a Restricted SubsidiarySection 6.17.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 2 contracts
Samples: Credit Agreement (Turning Point Brands, Inc.), Credit Agreement (Turning Point Brands, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Managers may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualificationsqualifications and the designation would not cause a Default:
(i) (A1) such Subsidiary does not own any Equity Interest Capital Stock of the Borrower Issuer or any other Restricted Subsidiary of or hold any Debt of, or any Lien on any property of, the Borrower and (B) such Subsidiary does not own Issuer or any Material Intellectual PropertyRestricted Subsidiary;
(ii2) at the time of the designation, the designation would be permitted under Section 4.07;
(3) any Guarantee or other credit support thereof of any Debt of the Subsidiary by the Borrower Issuer or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or 4.06 and Section 6.084.07;
(iii4) the Subsidiary is not party to any transaction or arrangement with the Issuer or any Restricted Subsidiary that would not be permitted under Section 4.13; and
(5) neither the Borrower Issuer nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results results, except to the extent permitted by Section 6.01 or 4.06 and Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower4.07. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bparagraph (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b1) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections paragraph (a)(i), (a)(ii), (a)(iii), (a)(iva) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection paragraph (d).
(2) The Board of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Managers may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of a Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,:
(i1) all existing Indebtedness Investments of the Borrower Issuer and its Restricted Subsidiaries therein (valued at the Issuer’s proportional share of the fair market value of its assets less liabilities as determined in good faith by the Board of Managers) will be deemed made at that time;
(2) all existing Capital Stock or Debt of the Issuer or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, Incurred at that time, and all Liens on property of the Borrower Issuer or a Restricted Subsidiary of the Borrower securing its obligations held by it will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii3) all existing transactions between it and the Borrower Issuer or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v4) it will cease to be subject to the provisions of this Agreement Indenture as a Restricted SubsidiarySubsidiary and its Guarantee of the Notes, if any, will be released.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),Subsidiary:
(i1) all of its Indebtedness, Liens Debt and Investments of such Subsidiary Disqualified or Preferred Stock will be deemed incurred Incurred at that time for purposes of Section 6.01 and 4.06, but will not be considered the sale or issuance of Equity Interests for purposes of Section 6.02, as applicable4.12;
(ii2) if Investments therein previously charged under Section 4.07 will be credited thereunder;
(3) it is a Material Domestic Restricted Subsidiary, it shall may be required to become issue a Guarantor Note Guarantee pursuant to Section 5.104.10; and
(iii4) it will thenceforth be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer of the Borrower Managers of a Subsidiary as an a Restricted Subsidiary or Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent Trustee by promptly delivering filing with the Trustee a copy of the Board Resolution giving effect to the Administrative Agent a certificate of a Responsible Officer of the Borrower designation and an Officers’ Certificate certifying that the designation complied with the foregoing provisions.
Appears in 2 contracts
Samples: Indenture (Mr. Cooper Group Inc.), Indenture (Home Point Capital Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer Directors of the Borrower Parent may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualificationsqualifications and the designation would not cause a Default:
(i) (A) such Such Subsidiary does not own any Equity Interest Capital Stock of the Borrower Company, Parent or any other Restricted Subsidiary of or hold any Debt of, or any Lien on any property of, the Borrower and (B) such Subsidiary does not own Company, Parent or any Material Intellectual Property;Restricted Subsidiary; and
(ii) At the time of the designation, the designation would be permitted under Section 4.07.
(iii) To the extent the Debt of the Subsidiary is not Non-Recourse Debt, any Guarantee or other credit support thereof by the Borrower Company, Parent or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or 4.06 and Section 6.08;4.07.
(iiiiv) neither The Subsidiary is not party to any transaction or arrangement with the Borrower nor Company, Parent or any Restricted Subsidiary that would not be permitted under Section 4.15.
(v) None of the Borrower Company, Parent or any Restricted Subsidiary has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or 4.06 and Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower4.07. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bclause (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(bi) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections clause (a)(i), (a)(ii), (a)(iii), (a)(iva) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection clause (d).
(ii) The Board of this Section 5.12. The board Directors of directors (or a committee thereof) or the chief financial officer of the Borrower Parent may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of a Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,:
(i) all existing Indebtedness Investments of the Borrower or a Company, Parent and the Restricted Subsidiary Subsidiaries therein (valued at Parent’s proportional share of the Borrower held by it fair market value of its assets less liabilities) will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred made at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower Company, Parent or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iviii) it will be automatically is released at that time from its Note Guaranty, if any;
(iv) the release of the Liens on the Intercompany Loan where such Subsidiary is the Loan Recipient;
(v) the release of the Liens on the Share Collateral where such Subsidiary is the issuer or the shares constituting such Share Collateral; and
(vvi) it will cease to be subject to the provisions of this Agreement the Indenture as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)Subsidiary,
(i) all of its Indebtedness, Liens Debt and Investments of such Subsidiary Disqualified or Preferred Stock will be deemed incurred Incurred at that time for purposes of Section 6.01 and 4.06, but will not be considered the sale or issuance of Equity Interests for purposes of Section 6.02, as applicable4.14;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall Investments therein previously charged under Section 4.07 will be required to become a Guarantor pursuant to Section 5.10; andcredited thereunder;
(iii) it may be required to issue a Note Guaranty pursuant to Section 4.11; and
(iv) the Company, Parent or Restricted Subsidiary may be required to grant a first-priority perfected security interest in the Equity Interests of such Subsidiary pursuant to Section 4.12(a); and may be required to grant a first-priority perfected security interest in any Intercompany Loans entered into thenceforward pursuant to Section 4.12(a); and
(v) it will thenceforward be subject to the provisions of this Agreement the Indenture as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer Directors of the Borrower Parent of a Subsidiary as an a Restricted Subsidiary or Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent Trustee by promptly delivering filing with the Trustee a copy of the Board Resolution giving effect to the Administrative Agent a certificate of a Responsible Officer of the Borrower designation and an Officers’ Certificate certifying that the designation complied with the foregoing provisions.
(f) The designation of a Subsidiary of Parent as an Unrestricted Subsidiary will be deemed to include the designation of all of the Subsidiaries of such Subsidiary, unless otherwise determined by the Board of Directors of Parent.
Appears in 2 contracts
Samples: Indenture (GeoPark LTD), Indenture (GeoPark Holdings LTD)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualificationsqualifications and the designation would not cause a Default:
(i1) (A) such Such Subsidiary does not own any Equity Interest Capital Stock of the Borrower Company or any other Restricted Subsidiary of or hold any Debt of, or any Lien on any property of, the Borrower and (B) such Subsidiary does not own Company or any Material Intellectual PropertyRestricted Subsidiary;
(ii2) At the time of the designation, the designation would be permitted under Section 4.07;
(3) To the extent the Debt of the Subsidiary is not Non-Recourse Debt, any Guarantee or other credit support thereof by the Borrower Company or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or 4.06 and Section 6.084.07;
(iii4) neither The Subsidiary is not party to any transaction or arrangement with the Borrower Company or any Restricted Subsidiary that would be prohibited by Section 4.14; and
(5) Neither the Company nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or 4.06 and Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower4.07. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b4.15(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b1) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(ivSection 4.15(a) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection Section 4.15(d).
(d2) The Board of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of a Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i1) all existing Indebtedness Investments of the Borrower or a Company and the Restricted Subsidiary Subsidiaries therein (valued at the Company’s proportional share of the Borrower held by it Fair Market Value of its assets less liabilities) will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred made at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii2) all existing transactions between it and the Borrower Company or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv3) it will be automatically is released at that time from its Note Guaranty, if any; and
(v4) it will cease to be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)Subsidiary,
(i1) all of its Indebtedness, Liens Debt and Investments of such Subsidiary Disqualified Stock or Preferred Stock will be deemed incurred Incurred at that time for purposes of Section 6.01 and 4.06, but will not be considered the sale or issuance of Equity Interests for purposes of Section 6.02, as applicable4.13;
(ii2) if Investments therein previously charged under Section 4.07 will be credited thereunder;
(3) it is a Material Domestic Restricted Subsidiary, it shall may be required to become issue a Guarantor Note Guaranty pursuant to Section 5.104.11; and
(iii4) it will thenceforward be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors of a Subsidiary as an a Restricted Subsidiary or Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent Trustee by promptly delivering filing with the Trustee a copy of the Board Resolution giving effect to the Administrative Agent a certificate of a Responsible Officer of the Borrower designation and an Officer’s Certificate certifying that the designation complied with the foregoing provisions.
Appears in 2 contracts
Samples: Indenture (Consensus Cloud Solutions, Inc.), Indenture (J2 Global, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower Parent may designate any Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable and any Unrestricted Subsidiary as a Restricted Subsidiary therein at the date of designation by notice in an amount equal writing given to the fair market value holders of the Borrower’s or the applicable Notes; provided that,
(a) if such Subsidiary initially is designated a Restricted Subsidiary’s Investment therein.
(b) A , then such Restricted Subsidiary previously may be subsequently designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will and such Unrestricted Subsidiary may be deemed to become at that time subsequently designated as a Restricted Subsidiary, subject to the consequences set forth but no further changes in subsection designation may be made;
(db) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate if such Subsidiary initially is designated an Unrestricted Subsidiary, then such Unrestricted Subsidiary to may be subsequently designated as a Restricted Subsidiary if and such Restricted Subsidiary may be subsequently designated as an Unrestricted Subsidiary, but no Event of Default exists at the time of the further changes in designation and the designation would not cause an Event of Default.may be made;
(c) Upon the Parent may not designate a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer unless: (i) such Restricted Subsidiary does not own, directly or indirectly, any Debt or capital stock of the Borrower certifying that Parent or any other Restricted Subsidiary, including the Company, (ii) such designation, considered as a sale of assets, is permitted pursuant to Section 10.6, and (iii) immediately before and after such designation complied with there exists no Default or Event of Default;
(d) notwithstanding Section 10.4(g), if an Unrestricted Subsidiary is designated as a Restricted Subsidiary, all outstanding Debt and Liens of such Subsidiary shall be deemed to have been incurred as of the foregoing provisionsdate of such designation; and
(e) the Parent may not designate the Company or any Subsidiary Guarantor an Unrestricted Subsidiary.
Appears in 2 contracts
Samples: Master Note Purchase Agreement (Encore Wire Corp /De/), Note Purchase Agreement (Encore Wire Corp /De/)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) Directors or chief financial officer of the Borrower Parent may designate any Subsidiary of the Parent (other than, after the consummation of a Holdco Transaction, the Borrower), including a newly acquired or created Subsidiary of the BorrowerParent, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower Parent or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual PropertyParent;
(ii) Parent would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate fair market value (as determined by the Borrower in good faith) of all Investments of Parent or its Restricted Subsidiaries in such Subsidiary (valued at Parent’s and its Restricted Subsidiaries’ proportional share of the fair market value (as determined by the Borrower in good faith) of such Subsidiary’s assets less liabilities);
(iii) any Guarantee or other credit support thereof by the Borrower Parent or any Restricted Subsidiary of the Borrower Parent is permitted under Section 6.01 6.1 or Section 6.086.7;
(iiiiv) neither the Borrower Parent nor any Restricted Subsidiary of the Borrower Parent has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 6.1 or Section 6.086.7;
(ivv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and;
(vvi) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower Parent or a Restricted Subsidiary of the BorrowerParent; and
(vii) such Subsidiary does not own (or hold an exclusive license in respect of) any Intellectual Property other than ownership or a license resulting from a Permitted IP Transfer. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) (i) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(va)(vi) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 2 contracts
Samples: Revolving Credit and Guaranty Agreement (DoorDash, Inc.), Revolving Credit and Guaranty Agreement (DoorDash Inc)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, other than a Material IP Subsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any or a Material Intellectual PropertyIP Subsidiary;
(ii) the Borrower would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate fair market value (as determined by the Borrower in good faith) of all Investments of the Borrower or its Restricted Subsidiaries in such Subsidiary (valued at the Borrower’s and the Restricted Subsidiaries’ proportional share of the fair market value (as determined by the Borrower in good faith) of such Subsidiary’s assets less liabilities);
(iii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 6.1 or Section 6.086.7;
(iiiiv) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 6.1 or Section 6.086.7;
(ivv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(vvi) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the BorrowerSubsidiary. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) (i) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(va)(vi) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 2 contracts
Samples: Revolving Credit and Guaranty Agreement (Dropbox, Inc.), Revolving Credit and Guaranty Agreement (Dropbox, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer Directors of the Borrower Issuer or any direct or indirect parent of the Issuer may designate any Subsidiary of the Borrower, Issuer (including a any existing Subsidiary and any newly acquired or created newly formed Subsidiary of the Borrower, Issuer) to be an Unrestricted Subsidiary if it meets unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on any property of, the following qualificationsIssuer or any other Subsidiary of the Issuer that is not a Subsidiary of the Subsidiary to be so designated; provided, however, that the Subsidiary to be so designated and its Subsidiaries do not at the time of designation have any Indebtedness pursuant to which the lender has recourse to any of the assets of the Issuer or any of its Restricted Subsidiaries; provided, further, however, that either:
(i) (A) such the Subsidiary does not own any Equity Interest to be so designated has total consolidated assets of the Borrower $1,000 or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;less; or
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted if such Subsidiary of the Borrower is has consolidated assets greater than $1,000, then such designation would be permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein3.4.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) The Board of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer Directors of the Borrower Issuer or any direct or indirect parent of the Issuer may designate an any Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.Subsidiary; provided, however, that immediately after giving effect to such designation:
(c1) Upon the Issuer could Incur $1.00 of Ratio Debt or (2) the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such designation, in each case on a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurredPro Forma Basis taking into account such designation, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 2 contracts
Samples: Indenture (Allison Transmission Holdings Inc), Indenture (Allison Transmission Holdings Inc)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer Directors of the Borrower Dutch Co-Issuer may designate any Subsidiary of the Borrower, Dutch Co-Issuer (including a any existing Subsidiary and any newly acquired or created newly formed Subsidiary of the Borrower, Dutch Co-Issuer) to be an Unrestricted Subsidiary if it meets unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on any property of, Dutch Co-Issuer or any other Subsidiary of Dutch Co-Issuer that is not a Subsidiary of the following qualificationsSubsidiary to be so designated; provided, however, that the Subsidiary to be so designated and its Subsidiaries do not at the time of designation have any Indebtedness pursuant to which the lender has recourse to any of the assets of Dutch Co-Issuer or any of its Restricted Subsidiaries; provided, further, however, that either:
(i) (A) such the Subsidiary does not own any Equity Interest to be so designated has total consolidated assets of the Borrower $1,000 or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;less; or
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted if such Subsidiary of the Borrower is has consolidated assets greater than $1,000, then such designation would be permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein3.4.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) The Board of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) Directors of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Dutch Co-Issuer may designate an any Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.Subsidiary; provided, however, that immediately after giving effect to such designation:
(c1) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Dutch Co-Issuer could Incur $1.00 of additional Indebtedness of pursuant to the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged Fixed Charge Coverage Ratio test described under Section 6.08 will 3.3 or (2) the Fixed Charge Coverage Ratio for Dutch Co-Issuer and its Restricted Subsidiaries would be credited thereunder;
(iii) all existing transactions between it equal to or greater than such ratio for Dutch Co-Issuer and the Borrower or any its Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary Subsidiaries immediately prior to such designation, in each case on a pro forma basis taking into account such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guarantydesignation, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 2 contracts
Samples: Indenture (Axalta Coating Systems Ltd.), Indenture (Axalta Coating Systems Ltd.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual PropertySubsidiary;
(ii) the Borrower would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate fair market value of all Investments of the Borrower or its Restricted Subsidiaries in such Subsidiary;
(iii) any Guarantee guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.086.07;
(iiiiv) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.086.07;
(ivv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(vvi) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the BorrowerSubsidiary. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) (i) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i5.13(a)(i), (a)(ii5.13(a)(iii), (a)(iii), (a)(iv5.13(a)(iv) or (a)(v5.13(a)(vi) of this Section 5.12 5.13 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d). (ii) The Board of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Investments of the Borrower and the Restricted Subsidiaries therein (valued at the Borrower’s proportional share of the fair market value of its assets less liabilities) will be deemed made at that time;
(ii) all existing Equity Interests or Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, incurred at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations held by it will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically is released at that time from the Loan Documents to which it is a party and all related security interests on its Guaranty, if anyproperty shall be released; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b5.13(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary Indebtedness will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable6.01;
(ii) if Investments therein previously charged under Section 6.07 will be credited thereunder;
(iii) it is a Material Domestic Restricted Subsidiary, it shall may be required to become a Guarantor pursuant to Section 5.10this Agreement; and
(iiiiv) it will thenceforward be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to filing with the Administrative Agent a copy of the resolutions of the Board of Directors giving effect to the designation and a certificate of a Responsible Officer an officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (LendingClub Corp), Credit and Guaranty Agreement (LendingClub Corp)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:qualifications and the designation would not cause a Default.
(i1) (A) such Such Subsidiary does not own have any direct or indirect obligation to subscribe for additional Equity Interest of the Borrower Company or any other Restricted Subsidiary Subsidiary.
(2) The Company would be permitted to make an investment at the time of the Borrower and (B) designation in an amount equal to the aggregate Fair Market Value of all investments of the Company or its Restricted Subsidiaries in such Subsidiary does not own any Material Intellectual Property;Subsidiary.
(ii3) To the extent the Debt of the Subsidiary is not Non-Recourse Debt, any Guarantee or other credit support thereof by the Borrower Company or any Restricted Subsidiary is permitted under Sections 4.06 and 4.07.
(4) Except as permitted by Section 4.14, the Subsidiary is not party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary of the Borrower Company unless the terms of any such agreement, contract, arrangement or understanding are not less favorable to the Company or such Restricted Subsidiary than those that could be obtained in a comparable arm’s-length transaction with a Person that is permitted under Section 6.01 or Section 6.08;not an Affiliate of the Company.
(iii5) neither Neither the Borrower Company nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before Sections 4.06 and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower4.07. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bparagraph (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b1) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections paragraph (a)(i), (a)(ii), (a)(iii), (a)(iva) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection paragraph (d).
(2) The Board of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of a Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i1) all existing Indebtedness Investments of the Borrower Company and the Restricted Subsidiaries therein (valued at the Company’s proportional share of the Fair Market Value of its assets less liabilities) will be deemed made at that time;
(2) all existing Capital Stock or Debt of the Company or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, Incurred at that time, and all Liens on property of the Borrower Company or a Restricted Subsidiary of the Borrower securing its obligations held by it will be deemed incurred Incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii3) all existing transactions between it and the Borrower Company or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv4) it will be automatically is released at that time from its GuarantyNote Guarantee, if any; and
(v5) it will cease to be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)Subsidiary,
(i1) all of its Indebtedness, Liens Debt and Investments of such Subsidiary Disqualified or Preferred Stock will be deemed incurred Incurred at that time for purposes of Section 6.01 and 4.06, but will not be considered the sale or issuance of Equity Interests for purposes of Section 6.02, as applicable4.13;
(ii2) if Investments therein previously charged under Section 4.07 will be credited thereunder;
(3) it is a Material Domestic Restricted Subsidiary, it shall may be required to become issue a Guarantor Note Guarantee pursuant to Section 5.104.11; and
(iii4) it will thenceforward be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors of a Subsidiary as an a Restricted Subsidiary or Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent Trustee by promptly delivering filing with the Trustee a copy of the Board Resolution giving effect to the Administrative Agent a certificate of a Responsible Officer of the Borrower designation and an Officer’s Certificate certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Indenture (Aci Worldwide, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower Issuer may designate any Restricted Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, Issuer to be an Unrestricted Subsidiary if it meets the following qualificationsSubsidiary; provided that:
(i) any guarantee by the Issuer or any Restricted Subsidiary thereof of any Indebtedness of the Subsidiary being so designated will be deemed to be an Incurrence of Indebtedness by the Issuer or such Restricted Subsidiary (Aor both, if applicable) at the time of such designation, and such Incurrence of Indebtedness would be permitted under Section 6.10;
(ii) the aggregate Fair Market Value of all outstanding Investments owned by the Issuer and its Restricted Subsidiaries in the Subsidiary being so designated (including any guarantee by the Issuer or any Restricted Subsidiary thereof of any Indebtedness of such Subsidiary) will, unless it otherwise constitutes a Permitted Investment, be deemed to be a Restricted Investment made as of the time of such designation and that such Investment would be permitted under Section 6.9;
(iii) such Subsidiary does not own hold any Equity Interest Liens on any property of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower Issuer or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08thereof;
(iiiiv) the Subsidiary being so designated:
(A) is a Person with respect to which neither the Borrower Issuer nor any of its Restricted Subsidiary of the Borrower Subsidiaries has any direct or indirect obligation (i) to subscribe for additional Equity Interests of such Subsidiary or (ii) to maintain or preserve its such Person’s financial condition or to cause it such Person to achieve any specified levels of operating results results;
(B) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or any of its Restricted Subsidiaries, except to the extent permitted by Section 6.01 such guarantee or Section 6.08;credit support would be released upon such designation; and
(ivC) immediately before and after is not a party to any agreement or understanding with the Issuer or any of its Restricted Subsidiaries unless the terms of any such designation, no Default or Event of Default shall have occurred and agreement would be continuing or would result from such designationpermitted under Section 6.12; and
(v) no Default or Event of Default would be in existence following such designation.
(b) Any designation of a Restricted Subsidiary may of the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by the Issuer providing a copy of a written notice of the Chief Executive Officer and/or the Chief Financial Officer of the Issuer notifying the Trustee of such designation. If, at any time, any Unrestricted Subsidiary would fail to meet any of the preceding requirements described in subclauses (A) or (B) of Section 6.5(a)(iv) above, 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 or made by a Restricted Subsidiary of the Issuer as of such date and, if such Indebtedness, Investments or Liens are not permitted to be Incurred or made as of such date under this Indenture, the Issuer will be in default under this Indenture. For the avoidance of doubt, any Subsidiary of the Issuer shall be a Restricted Subsidiary unless designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal pursuant to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment thereinforegoing.
(bc) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet The Chief Executive Officer and/or the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer Chief Financial Officer of the Borrower Issuer may at any time designate an any Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,; provided that:
(i) all existing such designation will be deemed to be an Incurrence of Indebtedness of the Borrower or by a Restricted Subsidiary of the Borrower held by it Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be deemed issued or incurred, as applicable, at that time, and all Liens on property of permitted if such Indebtedness is permitted under the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that timecovenant described under Section 6.10;
(ii) all outstanding Investments therein previously charged owned by such Unrestricted Subsidiary will be deemed to be made as of the time of such designation and such designation will only be permitted if such Investments would be permitted under the covenant described under Section 6.08 will 6.9, provided that such outstanding Investments shall be credited thereundervalued at the lesser of (A) the Fair Market Value of such Investments measured on the date of such designation and (B) the Fair Market Value of such Investments measured at the time each such Investment was made by such Unrestricted Subsidiary;
(iii) all Liens upon property or assets of such Unrestricted Subsidiary existing transactions between it and at the Borrower or any Restricted Subsidiary time of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will designation would be deemed entered into at that time;permitted under Section 6.6; and
(iv) it will no Default or Event of Default would be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiaryin existence following such designation.
(d) Upon an Any Unrestricted Subsidiary becoming, or being deemed to become, of the Issuer that has not been designated as a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it the foregoing shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted remain an Unrestricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. 170
(a) The board of directors (or a committee thereof) or chief financial officer of the Borrower may designate any Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, to be Unless designated as an Unrestricted Subsidiary if it meets the following qualifications:
on Schedule 7.14 as of June 9, 2014 or thereafter, in compliance with Section 9.19(b) or (i) (A) such d), any Person that becomes a Subsidiary does not own any Equity Interest of the Borrower or any other of its Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;Subsidiaries shall be classified as a Restricted Subsidiary.
(iib) any Guarantee or other credit support The Borrower may designate by written notification thereof by to the Borrower or Administrative Agent, any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary Subsidiary, including a newly or to maintain be formed or preserve its financial condition newly or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designationbe acquired Subsidiary, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it (i) prior, and immediately after giving effect, to such designation, neither a Default nor a Borrowing Base dDeficiency would exist and (ii) such designation is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain deemed to be an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as Investment in an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value as of the date of such designation of the Borrower’s or and its Restricted Subsidiaries’ direct ownership interests in such Subsidiary and such Investment would be permitted to be made at the applicable time of such designation under Section 9.05(n). Except as provided in this Section 9.19(b), no Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously may be designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections Subsidiary.
(a)(i), (a)(ii), (a)(iii), (a)(ivc) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an any Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
immediately after giving effect to such designation, (i) all existing Indebtedness the representations and warranties of the Borrower or a and its Restricted Subsidiary Subsidiaries contained in each of the Borrower held by it will be deemed issued or incurred, Loan Documents are true and correct in all material respects on and as applicable, at that time, of such date as if made on and all Liens on property as of the Borrower or a Restricted Subsidiary date of the Borrower securing its obligations will be deemed incurred at that time;
such redesignation (or, if stated to have been made expressly as of an earlier date, were true and correct in all material respects as of such date), (ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
no Default exists, (iii) all existing transactions between it and the Borrower complies with the requirements of Section 8.14(b) and Section 8.18 and (iv) the Borrower and/or one or any more Restricted Subsidiary Subsidiaries owns all of the Borrower (including Investments of the Borrower or any Restricted Subsidiary Equity Interests in such Subsidiary) will . Any such designation shall be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject treated as a cash dividend to the provisions Borrower in an amount equal to the lesser of this Agreement the fair market value of the Borrower’s and its Restricted Subsidiaries’ direct ownership interests in such Subsidiary or the amount of the Borrower’s and its Restricted Subsidiaries’ aggregate investment previously made for purposes of the limitation on Investments under Section 9.05(n). Upon the designation of an Unrestricted Subsidiary as a Restricted Subsidiary, all Investments previously made in such Unrestricted Subsidiary shall no longer be counted in determining the limitation on Investments under Section 9.05(n).
(d) Upon Each Subsidiary of an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will shall automatically be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, designated as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted an Unrestricted Subsidiary.
(e) Any Upon designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Restricted Subsidiary as an Unrestricted Subsidiary after in compliance with Section 9.19(b), (i) such Subsidiary shall be automatically released from all obligations, if any, under the Effective Date will be evidenced Loan Documents, including the Guaranty Agreement and all other applicable Security Instruments and (ii) all Liens granted pursuant to the Administrative Agent by promptly delivering to Guaranty Agreement and all other applicable Security Instruments on the Administrative Agent a certificate of a Responsible Officer of Property of, and the Borrower certifying that the designation complied with the foregoing provisionsEquity Interests in, such Unrestricted Subsidiary shall be automatically released.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower may designate any Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, to be Unless designated as an Unrestricted Subsidiary if it meets on Schedule 8.12 as of the following qualifications:
date hereof or thereafter, in compliance with Section 10.17(b) or (i) (A) such d), any Person that becomes a Subsidiary does not own any Equity Interest of the Borrower or any other of its Restricted Subsidiaries shall be classified as a Restricted Subsidiary.
(b) The Borrower may designate by written notification thereof to the Administrative Agent, any Restricted Subsidiary of the Borrower (other than OpCo), including a newly or to be formed or newly or to be acquired Subsidiary, as an Unrestricted Subsidiary if (i) prior, and (B) immediately after giving effect, to such Subsidiary does not own any Material Intellectual Property;
designation, neither a Default nor a Borrowing Base Deficiency would exist, (ii) any Guarantee or other credit support thereof by such designation is deemed to be an Investment in an Unrestricted Subsidiary in an amount equal to the Borrower or any Restricted Subsidiary Fair Market Value as of the Borrower is date of such designation of the Borrower’s and its Restricted Subsidiaries’ direct ownership interests in such Subsidiary and such Investment would be permitted to be made at the time of such designation under Section 6.01 or Section 6.08;
10.15 and (iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation shall be in Pro Forma Compliance after giving effect to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation. Except as provided in this Section 10.17(b), no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Restricted Subsidiary may be designated as an Unrestricted Subsidiary.
(c) The Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” immediately after giving effect to such designation, (or any similar designationi) for any other Indebtedness the representations and warranties of the Borrower or a and its Restricted Subsidiary Subsidiaries contained in each of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation Loan Documents are true and correct in all material respects on and as of any Restricted Subsidiary such date as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at if made on and as of the date of such redesignation (or, if stated to have been made expressly as of an earlier date, were true and correct in all material respects as of such date), (ii) no Default exists, (iii) the Borrower complies with the requirements of Section 9.11 and Section 9.18, (iv) the Borrower and/or one or more Restricted Subsidiaries owns all of the Equity Interests in such Subsidiary and (v) the Borrower shall be in Pro Forma Compliance after giving effect to such designation. Any such designation shall be treated as a cash dividend to the Borrower in an amount equal to the lesser of the fair market value of the Borrower’s and its Restricted Subsidiaries’ direct ownership interests in such Subsidiary or the applicable amount of the Borrower’s and its Restricted Subsidiary’s Investment therein.
(b) A Subsidiary Subsidiaries’ aggregate investment previously designated as made for purposes of the limitation on Investments under Section 10.15. Upon the designation of an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time as a Restricted Subsidiary, subject to the consequences set forth all Investments previously made in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an such Unrestricted Subsidiary to shall no longer be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens counted in determining any limitation on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary10.15.
(d) Upon Each Subsidiary of an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will shall automatically be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, designated as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted an Unrestricted Subsidiary.
(e) Any Upon designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Restricted Subsidiary as an Unrestricted Subsidiary after in compliance with Section 10.17(b), (i) such Subsidiary shall be automatically released from all obligations, if any, under the Effective Date will be evidenced Loan Documents, including the Guarantee and all other applicable Security Documents and (ii) all Liens granted pursuant to the Administrative Agent by promptly delivering to Guarantee and all other applicable Security Documents on the Administrative Agent a certificate of a Responsible Officer of property of, and the Borrower certifying that the designation complied with the foregoing provisionsEquity Interests in, such Unrestricted Subsidiary shall be automatically released.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer Directors of the Borrower Issuer may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the Borrower, to be an Unrestricted Subsidiary if it meets the following qualifications:created
(i) (A) such Such Subsidiary does not own any Equity Interest Capital Stock of the Borrower Issuer or any other Restricted Subsidiary of or hold any Debt of, or any Lien on any property of, the Borrower and (B) such Subsidiary does not own Issuer or any Material Intellectual Property;Restricted Subsidiary; and
(ii) At the time of the designation, the designation would be permitted under Section 4.08 or as a Permitted Investment.
(iii) To the extent the Debt of the Subsidiary is not Non-Recourse Debt, any Guarantee or other credit support thereof by the Borrower Issuer or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or 4.07 and Section 6.08;4.08.
(iiiiv) neither The Subsidiary is not party to any transaction or arrangement with the Borrower Issuer or any Restricted Subsidiary that would not be permitted under Section 4.14.
(v) Neither the Issuer nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or 4.07 and Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower4.08. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bclause (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(bi) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections clause (a)(i), (a)(ii), (a)(iii), (a)(iva) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection clause (d).
(ii) The Board of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer Directors of the Borrower Issuer may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of a Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,:
(i) all existing Indebtedness Investments of the Borrower or a Issuer and the Restricted Subsidiary Subsidiaries therein (valued at Issuer’s proportional share of the Borrower held by it fair market value of its assets less liabilities) will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred made at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower Issuer or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iviii) it will be automatically is released at that time from its GuarantyNote Guarantee, if any; and
(viv) it will cease to be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)Subsidiary,
(i) all of its Indebtedness, Liens Debt and Investments of such Subsidiary Disqualified or Preferred Stock will be deemed incurred Incurred at that time for purposes of Section 6.01 and 4.07, but will not be considered the sale or issuance of Equity Interests for purposes of Section 6.02, as applicable4.13;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall Investments therein previously charged under Section 4.08 will be required to become a Guarantor pursuant to Section 5.10; andcredited thereunder;
(iii) it may be required to provide a Note Guarantee pursuant to Section 4.11; and
(iv) it will thenceforward be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer Directors of the Borrower Issuer of a Subsidiary as an a Restricted Subsidiary or Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent Trustee by promptly delivering filing with the Trustee a copy of the Board Resolution giving effect to the Administrative Agent a certificate of a Responsible Officer of the Borrower designation and an Officers’ Certificate certifying that the designation complied with the foregoing provisions.
(f) The designation of a Subsidiary of the Issuer as an Unrestricted Subsidiary will be deemed to include the designation of all of the Subsidiaries of such Subsidiary, unless otherwise determined by the Board of Directors of the Issuer.
Appears in 1 contract
Samples: Indenture (GeoPark LTD)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:qualifications and the designation would not cause a Default.
(i1) (A) such Such Subsidiary does not own any Equity Interest Capital Stock of the Borrower Issuer (other than Qualified Equity Interests) or any other Restricted Subsidiary that is not a Subsidiary of the Borrower and (B) such Subsidiary does to be so designated or hold any Lien on any property of the Issuer or any Restricted Subsidiary that is not own any Material Intellectual Property;a Subsidiary of the Subsidiary to be so designated.
(ii2) At the time of the designation, the designation would be permitted under Section 4.05 hereof or as a Permitted Investment.
(3) To the extent the Debt of the Subsidiary is not Non-Recourse Debt, any Guarantee or other credit support thereof by the Borrower Issuer or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;Sections 4.04 and 4.05 hereof.
(iii4) neither Neither the Borrower Issuer nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before Sections 4.04 and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower4.05 hereof. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein4.12(b) hereof.
(b1) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections paragraph (a)(i), (a)(ii), (a)(iii), (a)(iva) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection paragraph (d).
(2) The Board of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of a Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i1) all existing Indebtedness Investments of the Borrower Issuer and the Restricted Subsidiaries therein (valued at the Issuer’s proportional share of the Fair Market Value of its assets less liabilities) will be deemed made at that time;
(2) all existing Capital Stock or Debt of the Issuer or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, Incurred at that time, and all Liens on property of the Borrower Issuer or a Restricted Subsidiary of the Borrower securing its obligations held by it will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii3) all existing transactions between it and the Borrower Issuer or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv4) it will be automatically is released at that time from its GuarantyNote Guarantee, if any; and
(v5) it will cease to be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)Subsidiary,
(i1) all of its Indebtedness, Liens Debt and Investments of such Subsidiary Disqualified or Preferred Stock will be deemed incurred Incurred at that time for purposes of Section 6.01 4.04 hereof (and must be permitted to be Incurred thereunder), but will not be considered the sale or issuance of Equity Interests for purposes of Section 6.02, as applicable4.10 hereof;
(ii2) if it is a Material Domestic Restricted SubsidiaryInvestments therein previously charged under Section 4.05 hereof will be credited thereunder;
(3) to the extent required by Section 4.08 hereof, it shall be required to become issue a Guarantor pursuant to Section 5.10Note Guarantee of the Notes; and
(iii4) it will thenceforward be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors of a Subsidiary as an a Restricted Subsidiary or Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent Trustee by promptly delivering filing with the Trustee a copy of the Board Resolution giving effect to the Administrative Agent a certificate of a Responsible Officer of the Borrower designation and an Officers’ Certificate certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Indenture (DineEquity, Inc)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:qualifications and the designation would not cause a Default.
(i1) (A) such Such Subsidiary does not own have any direct or indirect obligation to subscribe for additional Equity Interest of the Borrower Company or any other Restricted Subsidiary Subsidiary.
(2) The Company would be permitted to make an investment at the time of the Borrower and (B) designation in an amount equal to the aggregate Fair Market Value of all investments of the Company or its Restricted Subsidiaries in such Subsidiary does not own any Material Intellectual Property;Subsidiary.
(ii3) To the extent the Debt of the Subsidiary is not Non-Recourse Debt, any Guarantee or other credit support thereof by the Borrower Company or any Restricted Subsidiary is permitted under Sections 4.06 and 4.07.
(4) Except as permitted by Section 4.14, the Subsidiary is not party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary of the Borrower Company unless the terms of any such agreement, contract, arrangement or understanding are not less favorable to the Company or such Restricted Subsidiary than those that could be obtained in a comparable arm’s-length transaction with a Person that is permitted under Section 6.01 or Section 6.08;not an Affiliate of the Company.
(iii5) neither Neither the Borrower Company nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before Sections 4.06 and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower4.07. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bparagraph (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections paragraph (a)(i), (a)(ii), (a)(iii), (a)(iva) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection paragraph (d).
(1) The Board of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of a Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i1) all existing Indebtedness Investments of the Borrower Company and the Restricted Subsidiaries therein (valued at the Company’s proportional share of the Fair Market Value of its assets less liabilities) will be deemed made at that time;
(2) all existing Capital Stock or Debt of the Company or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, Incurred at that time, and all Liens on property of the Borrower Company or a Restricted Subsidiary of the Borrower securing its obligations held by it will be deemed incurred Incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii3) all existing transactions between it and the Borrower Company or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv4) it will be automatically is released at that time from its GuarantyNote Guarantee, if any; and
(v5) it will cease to be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)Subsidiary,
(i1) all of its Indebtedness, Liens Debt and Investments of such Subsidiary Disqualified or Preferred Stock will be deemed incurred Incurred at that time for purposes of Section 6.01 and 4.06, but will not be considered the sale or issuance of Equity Interests for purposes of Section 6.02, as applicable4.13;
(ii2) if Investments therein previously charged under Section 4.07 will be credited thereunder;
(3) it is a Material Domestic Restricted Subsidiary, it shall may be required to become issue a Guarantor Note Guarantee pursuant to Section 5.104.11; and
(iii4) it will thenceforward be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors of a Subsidiary as an a Restricted Subsidiary or Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent Trustee by promptly delivering filing with the Trustee a copy of the Board Resolution giving effect to the Administrative Agent a certificate of a Responsible Officer of the Borrower designation and an Officer’s Certificate certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Indenture (Aci Worldwide, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower Parent Guarantor may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of (other than the BorrowerCompany or the Co-issuer), to be an Unrestricted Subsidiary if it meets the following qualifications:qualifications and the designation would not cause a Default.
(i) (A) such Such Subsidiary does not own any Equity Interest Capital Stock of the Borrower Parent Guarantor or any other Restricted Subsidiary of or hold any Debt of, or any Lien on any property of, the Borrower and (B) such Subsidiary does not own Parent Guarantor or any Material Intellectual Property;Restricted Subsidiary.
(ii) At the time of the designation, the designation would be permitted under Section 4.08.
(iii) To the extent the Debt of the Subsidiary is not Non-Recourse Debt, any Guarantee or other credit support thereof by the Borrower Parent Guarantor or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or 4.08 and Section 6.08;4.09.
(iiiiv) neither The Subsidiary is not party to any transaction or arrangement with the Borrower Parent Guarantor or any Restricted Subsidiary that would not be permitted under Section 4.12 after giving effect to the exceptions thereto.
(v) Neither the Parent Guarantor nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results results, except to the extent permitted by Section 6.01 or 4.08 and Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower4.09. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(bi) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections subsection (a)(i), (a)(ii), (a)(iii), (a)(iva) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d).
(ii) The Board of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of a Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness Investments of the Borrower Parent Guarantor and the Restricted Subsidiaries therein (valued at the Parent Guarantor’s proportional share of the Fair Market Value of its assets less liabilities) will be deemed made at that time;
(ii) all existing Capital Stock or Debt of the Parent Guarantor or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, incurred at that time, and all Liens on property of the Borrower Parent Guarantor or a Restricted Subsidiary of the Borrower securing its obligations held by it will be deemed incurred Incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower Parent Guarantor or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will shall be automatically released at that time from its Note Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement the Indenture and the Note Documents as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)Subsidiary,
(i) all of its Indebtedness, Liens Debt and Investments of such Subsidiary Disqualified Stock or Preferred Stock will be deemed incurred Incurred at that time for purposes of Section 6.01 and 4.09 but will not be considered the sale or issuance of Equity Interests for purposes of Section 6.02, as applicable4.07;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall Investments therein previously charged under Section 4.08 will be required to become a Guarantor pursuant to Section 5.10; andcredited thereunder;
(iii) it may be required to issue a Note Guaranty pursuant to Section 4.13; and
(iv) it will thenceforward be subject to the provisions of this Agreement hereof as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower Parent Guarantor of a Subsidiary as an a Restricted Subsidiary or Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent Trustee by promptly delivering filing with the Trustee a copy of the Board Resolution giving effect to the Administrative Agent a certificate of a Responsible Officer of the Borrower designation and an Officers’ Certificate certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Indenture (Antelope Coal LLC)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the Borrower (other than the Borrower), including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower of, or hold any Lien on or indebtedness of, any Obligor or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual PropertySubsidiary;
(ii) the Borrower would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate fair market value of all Investments of the Obligors and their Restricted Subsidiaries in such Subsidiary;
(iii) any Guarantee guarantee or other credit support thereof by the Borrower any Obligor or any other Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.086.06;
(iiiiv) neither the Borrower nor any Restricted Subsidiary none of the Borrower Obligors or their respective Restricted Subsidiaries has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.086.06;
(ivv) immediately before and after such designation, (x) no Default or Event of Default shall have occurred and be continuing or would result from such designationdesignation and (y) Borrower shall be in pro forma compliance with the financial covenants set forth in Article 7; and
(vvi) no Subsidiary may be designated as an Unrestricted Subsidiary if (x) it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower Obligors or a their respective Restricted Subsidiary Subsidiaries or (y) owns, licenses or otherwise holds any legal right to any Intellectual Property Rights that are material to the business and/or operations of the BorrowerBorrower and its Restricted Subsidiaries (taken as a whole) (collectively, “Material Intellectual Property”). Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i5.12(a)(i), (a)(ii5.12(a)(iii), (a)(iii), (a)(iv5.12(a)(iv) or (a)(v5.12(a)(vi) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default).
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Investments of the Obligors and their respective Restricted Subsidiaries therein (valued at the Borrower’s proportional share of the fair market value of its assets less liabilities) will be deemed made at that time;
(ii) all existing Indebtedness of the Borrower any Obligor or a its Restricted Subsidiary of the Borrower Subsidiaries held by it will be deemed issued or incurred, as applicable, incurred at that time, and all Liens on property of the Borrower any Obligor or a its Restricted Subsidiary of the Borrower securing its obligations Subsidiaries held by it will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower any Obligor or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically is released at that time from the Loan Documents to which it is a party and all related security interests on its Guaranty, if anyproperty shall be released; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) The Board of Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if, immediately before and after such designation, the designation (x) would not cause an Event of Default and (y) Borrower would be in pro forma compliance with the financial covenants set forth in Article 7. Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)Subsidiary,
(i) all of its Indebtedness, Liens and Investments of such Subsidiary Indebtedness will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable6.01;
(ii) if it is a Material Domestic Restricted SubsidiaryInvestments therein previously charged under Section 6.06 will be credited thereunder;
(iii) Subject to Section 5.13, it shall be required to become a Guarantor pursuant to Section 5.10this Agreement; and
(iiiiv) it will thenceforward be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors of a Subsidiary as an Unrestricted Subsidiary or a Restricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to filing with the Administrative Agent a copy of the resolutions of the Board of Directors giving effect to the designation and a certificate of a Responsible Officer an officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Compass, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer Directors of the Borrower Issuer may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualificationsqualifications and the designation would not cause a Default:
(i) (A) such Such Subsidiary does not own any Equity Interest Capital Stock of the Borrower Issuer or any other Restricted Subsidiary of or hold any Debt of, or any Lien on any property of, the Borrower and (B) such Subsidiary does not own Issuer or any Material Intellectual Property;Restricted Subsidiary; and
(ii) At the time of the designation, the designation would be permitted under Section 4.08 or as a Permitted Investment.
(iii) To the extent the Debt of the Subsidiary is not Non- Recourse Debt, any Guarantee or other credit support thereof by the Borrower Issuer or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or 4.07 and Section 6.08;4.08.
(iiiiv) neither The Subsidiary is not party to any transaction or arrangement with the Borrower Issuer or any Restricted Subsidiary that would not be permitted under Section 4.15.
(v) Neither the Issuer nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or 4.07 and Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower4.08. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bclause (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(bi) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections clause (a)(i), (a)(ii), (a)(iii), (a)(iva) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection clause (d).
(ii) The Board of this Section 5.12. The board Directors of directors (or a committee thereof) or the chief financial officer of the Borrower Issuer may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of a Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,:
(i) all existing Indebtedness Investments of the Borrower or a Issuer and the Restricted Subsidiary Subsidiaries therein (valued at Issuer’s proportional share of the Borrower held by it fair market value of its assets less liabilities) will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred made at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower Issuer or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iviii) it will be automatically is released at that time from its Note Guaranty, if any;
(iv) the release of the Liens on the Collateral where such Subsidiary is the issuer or the shares constituting such Collateral; and
(v) it will cease to be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)Subsidiary,
(i) all of its Indebtedness, Liens Debt and Investments of such Subsidiary Disqualified or Preferred Stock will be deemed incurred Incurred at that time for purposes of Section 6.01 and 4.07, but will not be considered the sale or issuance of Equity Interests for purposes of Section 6.02, as applicable4.14;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall Investments therein previously charged under Section 4.08 will be required to become a Guarantor pursuant to Section 5.10; andcredited thereunder;
(iii) it may be required to issue a Note Guaranty pursuant to Section 4.11; and
(iv) the Issuer or Restricted Subsidiary may be required to grant a first-priority perfected security interest in the Equity Interests of such Subsidiary pursuant to Section 4.12(i); and
(v) it will thenceforward be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer Directors of the Borrower Issuer of a Subsidiary as an a Restricted Subsidiary or Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent Trustee by promptly delivering filing with the Trustee a copy of the Board Resolution giving effect to the Administrative Agent a certificate of a Responsible Officer of the Borrower designation and an Officers’ Certificate certifying that the designation complied with the foregoing provisions.
(f) The designation of a Subsidiary of Issuer as an Unrestricted Subsidiary will be deemed to include the designation of all of the Subsidiaries of such Subsidiary, unless otherwise determined by the Board of Directors of Issuer.
Appears in 1 contract
Samples: Indenture (GeoPark LTD)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower may designate any Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, to be Unless designated as an Unrestricted Subsidiary if it meets on Schedule 8.12 as of the following qualifications:
date hereof or thereafter, in compliance with Section 10.17(b) or (i) (A) such d), any Person that becomes a Subsidiary does not own any Equity Interest of the Borrower or any other of its Restricted Subsidiaries shall be classified as a Restricted Subsidiary.
(b) The Borrower may designate by written notification thereof to the Administrative Agent, any Restricted Subsidiary, including a newly or to be formed or newly or to be acquired Subsidiary, as an Unrestricted Subsidiary of the Borrower if (i) prior, and (B) immediately after giving effect, to such Subsidiary does not own any Material Intellectual Property;
designation, neither a Default nor a Borrowing Base Deficiency would exist and (ii) any Guarantee or other credit support thereof by such designation is deemed to be an Investment in an Unrestricted Subsidiary in an amount equal to the Borrower or any Restricted Subsidiary Fair Market Value as of the Borrower is date of such designation of the Borrower’s and its Restricted Subsidiaries’ direct ownership interests in such Subsidiary and such Investment would be permitted to be made at the time of such designation under Section 6.01 or 10.15. Except as provided in this Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation10.17(b), no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Restricted Subsidiary may be designated as an Unrestricted Subsidiary.
(c) The Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” immediately after giving effect to such designation, (or any similar designationi) for any other Indebtedness the representations and warranties of the Borrower or a and its Restricted Subsidiary Subsidiaries contained in each of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation Loan Documents are true and correct in all material respects on and as of any Restricted Subsidiary such date as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at if made on and as of the date of such redesignation (or, if stated to have been made expressly as of an earlier date, were true and correct in all material respects as of such date), (ii) no Default exists, (iii) the Borrower complies with the requirements of Section 9.11 and Section 9.18 and (iv) the Borrower and/or one or more Restricted Subsidiaries owns all of the Equity Interests in such Subsidiary. Any such designation shall be treated as a cash dividend to the Borrower in an amount equal to the lesser of the fair market value of the Borrower’s and its Restricted Subsidiaries’ direct ownership interests in such Subsidiary or the applicable amount of the Borrower’s and its Restricted Subsidiary’s Investment therein.
(b) A Subsidiary Subsidiaries’ aggregate investment previously designated as made for purposes of the limitation on Investments under Section 10.15. Upon the designation of an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time as a Restricted Subsidiary, subject to the consequences set forth all Investments previously made in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an such Unrestricted Subsidiary to shall no longer be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens counted in determining any limitation on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary10.15.
(d) Upon Each Subsidiary of an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will shall automatically be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, designated as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted an Unrestricted Subsidiary.
(e) Any Upon designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Restricted Subsidiary as an Unrestricted Subsidiary after in compliance with Section 10.17(b), (i) such Subsidiary shall be automatically released from all obligations, if any, under the Effective Date will be evidenced Loan Documents, including the Guarantee and all other applicable Security Documents and (ii) all Liens granted pursuant to the Administrative Agent by promptly delivering to Guarantee and all other applicable Security Documents on the Administrative Agent a certificate of a Responsible Officer of property of, and the Borrower certifying that the designation complied with the foregoing provisionsEquity Interests in, such Unrestricted Subsidiary shall be automatically released.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower any Obligor or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual PropertySubsidiary;
(ii) any Guarantee guarantee or other credit support thereof by the Borrower any Obligor or any other Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.086.01;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and;
(viv) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower Obligors or a their respective Restricted Subsidiary Subsidiaries; and
(v) immediately after such designation and as of each Test Period ending thereafter, the aggregate total assets of all Unrestricted Subsidiaries does not exceed an amount equal to 7.5% of the BorrowerConsolidated Total Net Assets as of the most recently ended Test Period. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously If the Consolidated Total Net Assets of all Unrestricted Subsidiaries so designated as an Unrestricted Subsidiary which fails to meet by the qualifications Borrower shall at any time exceed the threshold amount set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or subsection (a)(v) of this Section 5.12 will 5.12, then Unrestricted Subsidiaries that are so designated at such time shall automatically be deemed to become at that time a redesignated as Restricted SubsidiarySubsidiaries (starting with the largest Unrestricted Subsidiary and continuing with the next largest and so on) until such threshold amount is no longer exceeded, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default).
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower any Obligor or a its Restricted Subsidiary of the Borrower Subsidiaries held by it will be deemed issued or incurred, as applicable, incurred at that time, and all Liens on property of the Borrower any Obligor or a its Restricted Subsidiary of the Borrower securing its obligations Subsidiaries held by it will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower any Obligor or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iviii) it will be automatically is released at that time from the Loan Documents to which it is a party and all related security interests on its Guaranty, if anyproperty shall be released; and
(viv) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) The Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if the designation would not cause an Event of Default. Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary Indebtedness will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable6.01;
(ii) all Liens on its property will be deemed incurred at that time for purposes of Section 6.02;
(iii) if it is a Material Domestic Restricted Subsidiary of the Borrower (unless it is an Excluded Subsidiary), it shall be required to become a Guarantor pursuant to this Agreement within the time frame set forth in Section 5.105.11; and
(iiiiv) it will thenceforward be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Slack Technologies, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, Issuer to be an Unrestricted Subsidiary if it meets the following qualificationsif:
(i) either (A) the Issuer or a Restricted Subsidiary, as the case may be, is permitted to make an Investment in such Subsidiary equal to the sum of the (1) Fair Market Value of the Capital Stock of such Subsidiary plus (2) the amount of any Debt owed by such Subsidiary to the Issuer, in each case pursuant to Section 4.10(a), or (B) such Investment constitutes a Permitted Investment;
(ii) immediately after giving pro forma effect to such designation, the Issuer could Incur at least $1.00 of additional Debt pursuant to Section 4.09(a)(i); and
(iii) such Subsidiary does not own any Equity Interest of Capital Stock or Debt of, or own or hold any Lien on any Property of, the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower Issuer or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor and does not have any Restricted Debt other than Non-Recourse Debt. Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of Issuer will be classified as a Restricted Subsidiary; provided, however, that such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may not be designated a Restricted Subsidiary and shall be automatically classified as an Unrestricted Subsidiary if it such Person is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Except as provided in Sections 4.15(a) or (c), no Restricted Subsidiary previously designated may be redesignated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject and neither the Issuer nor any Restricted Subsidiary shall at any time be directly or indirectly liable for any Debt (other than Debt pursuant to this Indenture) that provides that the consequences set forth in subsection holder thereof may (dwith the passage of time or notice or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its Stated Maturity upon the occurrence of this Section 5.12. a default with respect to any Debt, Lien or other obligation of any Unrestricted Subsidiary (including any right to take enforcement action against any such Unrestricted Subsidiary).
(c) The board Board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an any Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiaryif, immediately after giving pro forma effect to such designation,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Indenture (Spansion Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, other than a Material IP Subsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not (x) own any Equity Interest of, hold any Indebtedness of or hold any Lien on the assets of, the Borrower or any Restricted Subsidiary or a Material IP Subsidiary or (y) own, or hold an exclusive license in, any Material IP;
(ii) the Borrower would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate fair market value (as determined by the Borrower in good faith) of all Investments of the Borrower or any other its Restricted Subsidiaries in such Subsidiary (valued at the Borrower’s and the Restricted Subsidiaries’ proportional share of the fair market value (as determined by the Borrower and (Bin good faith) of such Subsidiary does not own any Material Intellectual PropertySubsidiary’s assets less liabilities);
(iiiii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 6.1 or Section 6.086.7;
(iiiiv) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial US-DOCS\155537880.27 condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 6.1 or Section 6.086.7;
(ivv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(vvi) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the BorrowerSubsidiary. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) (i) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(va)(vi) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) Directors or chief financial officer of the Borrower Parent may designate any Subsidiary of the BorrowerParent, including a newly acquired or created Subsidiary of the BorrowerParent, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower Parent or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual PropertyParent;
(ii) Parent would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate fair market value (as determined by the Borrower in good faith) of all Investments of Parent or its Restricted Subsidiaries in such Subsidiary (valued at Parent’s and its Restricted Subsidiaries’ proportional share of the fair market value (as determined by the Borrower in good faith) of such Subsidiary’s assets less liabilities);
(iii) any Guarantee or other credit support thereof by the Borrower Parent or any Restricted Subsidiary of the Borrower Parent is permitted under Section 6.01 6.1 or Section 6.086.7;
(iiiiv) neither the Borrower Parent nor any Restricted Subsidiary of the Borrower Parent has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 6.1 or Section 6.086.7;
(ivv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(vvi) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower Parent or a Restricted Subsidiary of the BorrowerParent. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) (i) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(va)(vi) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Pinterest, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:qualifications and the designation would not cause a Default.
(i1) (A) such Such Subsidiary does not own any Equity Interest Capital Stock of the Borrower Company (other than Qualified Equity Interests) or any other Restricted Subsidiary that is not a Subsidiary of the Borrower and (B) such Subsidiary does to be so designated or hold any Lien on any property of the Company or any Restricted Subsidiary that is not own any Material Intellectual Property;a Subsidiary of the Subsidiary to be so designated.
(ii2) At the time of the designation, the designation would be permitted under Section 4.5 or as a Permitted Investment.
(3) To the extent the Debt of the Subsidiary is not Non-Recourse Debt, any Guarantee or other credit support thereof by the Borrower Company or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or 4.04 and Section 6.08;4.05.
(iii4) neither Neither the Borrower Company nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results results, except to the extent permitted by Section 6.01 or 4.04 and Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower4.05. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bparagraph (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b1) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections paragraph (a)(i), (a)(ii), (a)(iii), (a)(iva) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection paragraph (d).
(2) The Board of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and (x) the designation would not cause an Event a Default and (y) immediately after giving effect to the transaction on a pro forma basis, (i) the Company could Incur at least $1.00 of DefaultDebt under the Fixed Charge Coverage Test or (ii) the Fixed Charge Coverage Ratio is greater than immediately prior thereto.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i1) all existing Indebtedness Investments of the Borrower Company and the Restricted Subsidiaries therein (valued at the Company’s proportional share of the fair market value of its assets less liabilities) will be deemed made at that time;
(2) all existing Capital Stock or Debt of the Company or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, Incurred at that time, and all Liens on property of the Borrower Company or a Restricted Subsidiary of the Borrower securing its obligations held by it will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii3) all existing transactions between it and the Borrower Company or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv4) it will be automatically is released at that time from its Note Guaranty, if any; and
(v5) it will cease to be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)Subsidiary,
(i1) all of its Indebtedness, Liens Debt and Investments of such Subsidiary Disqualified or Preferred Stock will be deemed incurred Incurred at that time for purposes of Section 6.01 and 4.04, but will not be considered the sale or issuance of Equity Interests for purposes of Section 6.02, as applicable4.10;
(ii2) if it is a Material Domestic Restricted SubsidiaryInvestments therein previously charged under Section 4.05 will be credited thereunder;
(3) to the extent required by Section 4.08, it shall be required to become issue a Guarantor pursuant to Section 5.10Note Guaranty of the Notes; and
(iii4) it will thenceforward be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors of a Subsidiary as an a Restricted Subsidiary or Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent Trustee by promptly delivering filing with the Trustee a copy of the Board Resolution giving effect to the Administrative Agent a certificate of a Responsible Officer of the Borrower designation and an Officers’ Certificate certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Indenture (Ruby Tuesday Inc)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:qualifications and the designation would not cause a Default.
(i1) (A) such Subsidiary does not own any Equity Interest At the time of the Borrower or any other Restricted Subsidiary designation, the designation would be permitted under Section 4.07.
(2) To the extent the Debt of the Borrower and (B) such Subsidiary does is not own any Material Intellectual Property;
(ii) Non-Recourse Debt, any Guarantee or other credit support thereof by the Borrower Company or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or 4.06 and Section 6.08;4.07.
(iii3) neither The Subsidiary is not party to any transaction or arrangement with the Borrower Company or any Restricted Subsidiary that would not be permitted under Section 4.13.
(4) Neither the Company nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or 4.06 and Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower4.07. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bparagraph (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b1) A Subsidiary previously designated as an Unrestricted Subsidiary pursuant to clause (iii) of the definition thereof which fails to meet the qualifications set forth in subsections paragraph (a)(i), (a)(ii), (a)(iii), (a)(iva) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection paragraph (d).
(2) The Board of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of a Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i1) all existing Indebtedness Investments of the Borrower Company and the Restricted Subsidiaries therein (valued at the Company’s proportional share of the fair market value of its assets less liabilities (as determined in good faith by the Company)) will be deemed made at that time;
(2) all existing Capital Stock or Debt of the Company or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, Incurred at that time, and all Liens on property of the Borrower Company or a Restricted Subsidiary of the Borrower securing its obligations held by it will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii3) all existing transactions between it and the Borrower Company or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv4) it will be automatically is released at that time from its Note Guaranty, if any; and
(v5) it will cease to be subject to the provisions of this Agreement the Indenture as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)Subsidiary,
(i1) all of its Indebtedness, Liens Debt and Investments of such Subsidiary Preferred Stock will be deemed incurred Incurred at that time for purposes of Section 6.01 and 4.06, but will not be considered the sale or issuance of Equity Interests for purposes of Section 6.02, as applicable4.12;
(ii2) if Investments therein previously charged under Section 4.07 will be credited as provided thereunder;
(3) it is a Material Domestic Restricted Subsidiary, it shall may be required to become issue a Guarantor Note Guaranty pursuant to Section 5.104.10; and
(iii4) it will thenceforward be subject to the provisions of this Agreement the Indenture as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors of a Subsidiary as an a Restricted Subsidiary or Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent Trustee by promptly delivering filing with the Trustee a copy of the Board Resolution giving effect to the Administrative Agent a certificate of a Responsible Officer of the Borrower designation and an Officer’s Certificate certifying that the designation complied with the foregoing provisions.
(f) Notwithstanding the foregoing, each of NGC and its Subsidiaries (after giving effect to the Transactions) and Current NGC shall be deemed an Unrestricted Subsidiary of the Company at all times on and after and for so long as it becomes a Subsidiary of the Company (which designation shall occur automatically and without the need to comply with clause (a) above).
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of After the Borrower Issue Date, the Issuer may designate any Subsidiary of the Borrower, its Subsidiaries (including a newly any acquired or created Subsidiary of the Borrower, newly formed Subsidiary) to be an Unrestricted Subsidiary if it meets unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or holds any Lien on any assets of, the following qualificationsIssuer or any other Subsidiary of the Issuer that is not a Subsidiary of the Subsidiary to be so designated; provided that:
(i1) (A) such Subsidiary does not own any Equity Interest of the Borrower no Default has occurred and is continuing or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Propertywould occur as a consequence thereof;
(ii2) any Guarantee (x) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception or other credit support thereof by (y) the Borrower or any Restricted Subsidiary Consolidated Coverage Ratio of the Borrower Issuer and the Restricted Subsidiaries is permitted under Section 6.01 equal to or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation greater than immediately prior to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v3) no either (x) the Subsidiary may to be so designated has total assets of $1,000 or less or (y) if such Subsidiary has assets greater than $1,000, such designation would be permitted under Section 4.07 (treating the Fair Market Value of the Issuer’s proportionate interest in the net worth of such Subsidiary on such date calculated in accordance with GAAP as the amount of the Investment). Any designation of a Subsidiary of the Issuer as an Unrestricted Subsidiary if it is will be evidenced to the Trustee by filing with the Trustee a “restricted subsidiary” or certified copy of a “guarantor” (or any similar designation) for any other Indebtedness resolution of the Borrower or a Restricted Subsidiary Board of Directors giving effect to such designation and an officers’ certificate certifying that such designation complied with the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to preceding conditions and was permitted by Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein4.07.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) The Board of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.Subsidiary; provided that:
(c1) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,no Default has occurred and is continuing; and
(i2) all existing Indebtedness of the Borrower or a Restricted such Unrestricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property any asset of the Borrower or a Restricted such Unrestricted Subsidiary of the Borrower securing its obligations will be deemed outstanding immediately following such redesignation would, if incurred at that such time;
(ii) all Investments therein previously charged under Section 6.08 will , be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease permitted to be subject to the provisions of incurred under this Agreement as a Restricted SubsidiaryIndenture.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Indenture (Koppers Holdings Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of After the Borrower Issue Date, the Company may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:qualifications and the designation would not cause a Default.
(i1) (A) such Such Subsidiary does not own any Equity Interest Capital Stock of the Borrower Company or any other Restricted Subsidiary or hold any Debt of, or any Lien on any property of, the Company or any Restricted Subsidiary at the time of the Borrower and (B) such Subsidiary does not own any Material Intellectual Propertydesignation;
(ii2) At the time of the designation, the designation would be permitted under Section 4.07 hereof;
(3) To the extent the Debt of the Subsidiary is not Non-Recourse Debt, any Guarantee or other credit support thereof by the Borrower Company or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or 4.07 hereof and Section 6.084.09 hereof;
(iii4) neither The Subsidiary is not party to any transaction or arrangement with the Borrower Company or any Restricted Subsidiary that would not be permitted under Section 4.11 hereof after giving effect to the exceptions thereto; and
(5) Neither the Company nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results results, except to the extent permitted by Section 6.01 or 4.07 hereof and Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower4.09 hereof. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein4.16(b) hereof.
(b1) A Subsidiary (other than Hillsboro and Xxxxxx, and, in each case, any Subsidiary thereof) previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(ivSection 4.16(a) or (a)(v) of this Section 5.12 hereof will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection Section 4.16(d) hereof.
(d2) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Company may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of a Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i1) all existing Indebtedness Investments of the Borrower Company and the Restricted Subsidiaries therein (valued at the Company’s proportional share of the Fair Market Value of its assets less liabilities) will be deemed made at that time;
(2) all existing Capital Stock or Debt of the Company or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, Incurred at that time, and all Liens on property of the Borrower Company or a Restricted Subsidiary of the Borrower securing its obligations held by it will be deemed incurred Incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii3) all existing transactions between it and the Borrower Company or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv4) it will shall be automatically released at that time from its GuarantyNote Guarantee, if any; and
(v5) it will cease to be subject to the provisions of this Agreement Indenture, the Note Documents and the Security Documents as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)Subsidiary,
(i1) all of its Indebtedness, Liens Debt and Investments of such Subsidiary Disqualified Stock or Preferred Stock will be deemed incurred Incurred at that time for purposes of Section 6.01 and 4.09 hereof but will not be considered the sale or issuance of Equity Interests for purposes of Section 6.02, as applicable4.10 hereof;
(ii2) if Investments therein previously charged under Section 4.07 hereof will be credited thereunder;
(3) it is a Material Domestic Restricted Subsidiary, it shall may be required to become issue a Guarantor Note Guarantee pursuant to Section 5.104.15 hereof; and
(iii4) it will thenceforward be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary. Notwithstanding anything in this Indenture or the other Notes Documents to the contrary, upon Hillsboro or Xxxxxx becoming a Restricted Subsidiary, (i) all Debt and Disqualified Stock or Preferred Stock of Hillsboro or Xxxxxx, as applicable, will be deemed to have been Incurred under Section 4.09(b)(3) hereof for purposes of Section 4.09 hereof, (ii) any Liens on properties or assets of Hillsboro or Xxxxxx, as applicable, will be deemed Incurred under clause (4) of the definition of “Permitted Liens” for purposes of Section 4.12 hereof, (iii) any Investments existing at such time of Hillsboro or Xxxxxx, as applicable, in any other Person will be deemed outstanding under clause (12) of the definition of “Permitted Investments” for purposes of Section 4.07 hereof, (iv) any encumbrances or restrictions limiting dividends or other payments by Hillsboro or Xxxxxx, as applicable, existing at such time will be deemed be permitted exist under Section 4.08 hereof and (v) any transactions between or among Hillsboro, Xxxxxx, the Company, any Restricted Subsidiary and/or any Affiliate of the Company existing at such time will be deemed to be permitted under Section 4.11 hereof. Notwithstanding anything in this Indenture or the other Notes Documents to the contrary, no Default will be deemed to have occurred as a result of the designation of Hillsboro or Xxxxxx as a Restricted Subsidiary and no exception to any covenant or basket in this Indenture (other than the exceptions referred to in the immediately preceding sentence) will be deemed to be used as a result of such designation (other than with respect to any Debt, Lien, Investment or other transaction Incurred, made or entered into substantially concurrent with and in contemplation of such re-designation).
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower Company of a Subsidiary as an a Restricted Subsidiary or Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent Trustee by promptly delivering to filing with the Administrative Agent a certificate of a Responsible Officer of the Borrower Trustee an Officer’s Certificate certifying that the designation complied with the foregoing provisions.
(f) Notwithstanding anything herein to the contrary, for so long as Hillsboro, Xxxxxx or any of their respective Subsidiaries are Unrestricted Subsidiaries, the Company shall not permit any of Hillsboro, Xxxxxx or their respective Subsidiaries to dividend or otherwise distribute insurance proceeds received in connection with, or in respect of, the Deer Run mine to any Person other than the Company or a Restricted Subsidiary.
Appears in 1 contract
Samples: Indenture (Foresight Energy LP)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual PropertySubsidiary;
(ii) the Borrower would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate fair market value of all Investments of the Borrower or its Restricted Subsidiaries in such Subsidiary;
(iii) any Guarantee guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iiiiv) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(ivv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(vvi) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the BorrowerSubsidiary. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i5.11(a)(i), (a)(ii5.11(a)(iii), (a)(iii), (a)(iv5.11(a)(iv) or (a)(v5.11(a)(vi) of this Section 5.12 5.11 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12). The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an a Default or Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,:
(i) all existing Investments of the Borrower and the Restricted Subsidiaries therein (valued at the Borrower’s proportional share of the fair market value of its assets less liabilities) will be deemed made at that time;
(ii) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, incurred at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations held by it will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically is released at that time from its Guaranty, if anythe Loan Documents to which it is a party; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),5.11(b):
(i) all of its Indebtedness, Liens and Investments of such Subsidiary Indebtedness will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable6.01;
(ii) Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10this Agreement; and
(iiiiv) it will thenceforward be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary or a Restricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to filing with the Administrative Agent a copy of the resolutions of the board of directors giving effect to the designation and a certificate of a Responsible Officer an officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of Subject to Section 10.13(b), the Borrower Company may designate any Subsidiary of the Borrower, including to be a newly acquired or created Restricted Subsidiary of the Borrower, and may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if it meets by giving written notice to each holder of Notes that the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest Board of Directors of the Borrower 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, (1) solely in the case of a Restricted Subsidiary being designated an Unrestricted Subsidiary, such Restricted Subsidiary being designated an Unrestricted Subsidiary shall not have any continuing Investment in the Company or any other Restricted Subsidiary of the Borrower and (B2) such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing (provided that, with respect to Sections 10.1 and 10.2, calculation of compliance therewith shall be made as of the date of determination under this Section 10.13 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 provisions of the first sentence of this Section 10.13, shall not at any time thereafter be redesignated an Unrestricted Subsidiary without the prior written consent of the Required Holders. Any Unrestricted Subsidiary which has been designated a Restricted Subsidiary and which has then been redesignated an Unrestricted Subsidiary, in each case in accordance with the provisions of the first sentence of this Section 10.13, shall not at any time thereafter be redesignated a Restricted Subsidiary without the prior written consent of the Required Holders. If the Company enters into any credit facility or would result from such designation; and
(v) no Subsidiary may note purchase agreement after the date hereof and New Jersey Natural Gas shall be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” under, then the Company shall, within 10 Business Days of its entering into such credit facility or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or note purchase agreement, designate New Jersey Natural Gas as a Restricted Subsidiary under this Agreement. If the Company enters into any credit facility or note purchase agreement after the date hereof and New Jersey Natural Gas shall be subjected to any negative covenants of the Borrower. Once so designatedtype included in this Section 10 of such credit facility or note purchase agreement, then and in any such event the Subsidiary will remain an Unrestricted Subsidiary, subject Company shall give written notice thereof to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at each holder not later than 30 days following the date of designation execution of any such agreement. Effective on the date of execution of any such agreement, such additional covenant that is included in such agreement and any related definitions shall be deemed to have been incorporated herein. The Company further covenants to promptly execute and deliver at its expense (including, without limitation, the fees and expenses of counsel for the holders) an amount equal amendment to this Agreement in form and substance satisfactory to the fair market value Required Holders evidencing the amendment of the Borrower’s or the applicable Restricted Subsidiary’s Investment thereinthis Agreement to include such additional covenant.
(b) A The Company will cause each Subsidiary previously that is designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists on Schedule 5.4 on the date hereof to at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as times remain a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Shelf Note Purchase Agreement (New Jersey Resources Corp)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer Directors of the Borrower Wise Intermediate Holdings may designate any Restricted Subsidiary of the Borrower, (including a any newly acquired or created newly formed Subsidiary of the Borrower, Wise Intermediate Holdings) to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) unless such Subsidiary owns any Equity Interests of, or owns or holds any Lien on any property of, Wise Intermediate Holdings or any Restricted Subsidiary; provided that (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower Wise Intermediate Holdings or any Restricted Subsidiary of any Indebtedness of the Borrower is Subsidiary being so designated shall be deemed an “incurrence” of such Indebtedness and an “Investment” by Wise Intermediate Holdings or such Restricted Subsidiary (or both, if applicable) at the time of such designation; (B) either (I) the Subsidiary to be so designated has total assets of $1,000 or less or (II) if such Subsidiary has assets greater than $1,000, such designation would be permitted under Section 6.01 or 4.04 and (C) if applicable, the incurrence of Indebtedness and the Investment referred to in clause (A) of this proviso would be permitted under Section 6.08;
4.03 and Section 4.04. The Board of Directors of Wise Intermediate Holdings may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that (iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iva) immediately before and after giving pro forma effect to such designation, (i) Wise Intermediate Holdings would be able to incur at least $1.00 of Indebtedness under the Fixed Charge Coverage Ratio described under Section 4.03(a) and (ii) the Fixed Charge Coverage Ratio would be equal to or greater than immediately prior to such designation; (b) no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the or after giving effect to such designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Liens and Indebtedness of the Borrower or a Restricted such Unrestricted Subsidiary of the Borrower held by it will outstanding immediately after such designation would, if incurred at such time, have been permitted to be incurred (and shall be deemed issued or to have been incurred, as applicable, at that time, and ) for all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions purposes of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of Indenture. Any such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer Directors of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will Wise Intermediate Holdings shall be evidenced to the Administrative Agent Trustee by promptly delivering to filing with the Administrative Agent Trustee a certificate of a Responsible Officer copy of the Borrower resolution of the Board of Directors of Wise Intermediate Holdings giving effect to such designation and an Officers’ Certificate certifying that the such designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Indenture (Constellium N.V.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower Company may designate any Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable and any Unrestricted Subsidiary as a Restricted Subsidiary therein at the date of designation by notice in an amount equal writing given to the fair market value holders of the Borrower’s Notes; provided that,
(a) the Company may not designate a Restricted Subsidiary as an Unrestricted Subsidiary unless: (i) such Restricted Subsidiary does not own, directly or indirectly, any Indebtedness or Capital Stock of the applicable Company or any other Restricted Subsidiary’s Investment therein.Subsidiary and (ii) immediately before and after such designation there exists no Default or Event of Default;
(b) A the Company may not designate a Subsidiary previously Guarantor as an Unrestricted Subsidiary;
(c) notwithstanding Section 10.4(a) and Section 10.5(h), if an Unrestricted Subsidiary is designated as a Restricted Subsidiary, all outstanding Indebtedness and Liens of such Subsidiary shall be deemed to have been incurred as of the date of such designation; and
(d) if a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) be an Investment made as of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and will reduce the amount available for Restricted Payments under Section 10.11 or under one or more clauses of the definition of Permitted Investments, as determined by the Company, provided that designation will only be permitted if the Investment would not cause an Event of Default.
(c) Upon a be permitted at the time pursuant to Section 10.11 and if the Restricted Subsidiary becoming otherwise meets the definition of an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualificationsqualifications and the designation would not cause an Event of Default:
(i) (A) such Such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;Subsidiary.
(ii) any Guarantee Borrower would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate Fair Market Value of all Investments of Borrower or its Restricted Subsidiaries in such Subsidiary.
(iii) Any guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;6.06.
(iiiiv) neither the Neither Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower6.06. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(bi) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections subsection (a)(i), (a)(ii), (a)(iii), (a)(iva) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d).
(ii) The Board of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Investments of Borrower and the Restricted Subsidiaries therein (valued at Borrower’s proportional share of the Fair Market Value of its assets less liabilities) will be deemed made at that time;
(ii) all existing Equity Interest or Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, incurred at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations held by it will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically is released at that time from its the Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)Subsidiary,
(i) all of its Indebtedness, Liens Indebtedness and Investments of such Subsidiary Disqualified Equity Interests will be deemed incurred at that time for purposes of Section 6.01 and 6.01, but will not be considered the sale or issuance of Equity Interests for purposes of Section 6.02, as applicable6.08;
(ii) if Investments therein previously charged under Section 6.06 will be credited thereunder;
(iii) it is a Material Domestic Restricted Subsidiary, it shall may be required to become a Guarantor pursuant to Section 5.10; and
(iiiiv) it will thenceforward be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the filing with Administrative Agent a copy of the resolutions of the Board of Directors giving effect to the designation and a certificate of a Responsible Officer an officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) Directors or chief financial officer of the Borrower may designate any Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual PropertySubsidiary;
(ii) the Borrower would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate fair market value (as determined by the Borrower in good faith) of all Investments of the Borrower or its Restricted Subsidiaries in such Subsidiary (valued at the Borrower’s and its Restricted Subsidiaries’ proportional share of the fair market value (as determined by the Borrower in good faith) of such Subsidiary’s assets less liabilities);
(iii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 6.1 or Section 6.086.7;
(iiiiv) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 6.1 or Section 6.086.7;
(ivv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and;
(vvi) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary; and
(vii) such Subsidiary of the Borrowerdoes not own (or hold an exclusive license in respect of) any Intellectual Property other than ownership or a license resulting from a Permitted IP Transfer. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) (i) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(va)(vi) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (DoorDash, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower Company may designate after the Closing Date any Subsidiary of the Borrower, (including a any newly acquired or created Subsidiary of the Borrower, to be newly formed Subsidiary) as an “Unrestricted Subsidiary if it meets the following qualificationsSubsidiary” under this Agreement (a “Designation”) only if:
(i1) (A) no Default or Event of Default has occurred and is continuing after giving effect to such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual PropertyDesignation;
(ii2) the Subsidiary to be so designated and its Subsidiaries do not at the time of Designation own any Guarantee Capital Stock or other credit support thereof by Indebtedness of, or own or hold any Lien with respect to the Borrower Company or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08Company;
(iii3) all the Indebtedness of such Subsidiary and its Subsidiaries shall, at the date of Designation, and will at all times thereafter, consist of Non-Recourse Debt;
(4) such Subsidiary is a Person with respect to which neither the Borrower Company nor any of its Restricted Subsidiary of the Borrower Subsidiaries has any obligation direct or indirect obligation:
(A) to subscribe for additional Equity Interests Capital Stock of such Subsidiary or Subsidiary; or
(B) to maintain or preserve its such Subsidiary’s financial condition or to cause it such Subsidiary to achieve any specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08results;
(iv5) immediately before and after on the date such designationSubsidiary is Designated an Unrestricted Subsidiary, no Default such Subsidiary is not a party to any agreement, contract, arrangement or Event understanding with the Company or any Restricted Subsidiary with terms substantially less favorable to the Company or such Restricted Subsidiary than those that might have been obtained from Persons who are not Affiliates of Default shall have occurred and be continuing or would result from such designationthe Company; and
(v6) no either (A) the Subsidiary may to be designated so Designated has total consolidated assets of $1,000 or less or (B) if such Subsidiary has consolidated assets greater than $1,000, then such Designation would be permitted as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Investment either under Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower 11.08 or the applicable Restricted Subsidiary therein at the date definition of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein“Permitted Investment.”
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Company may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or revoke any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower Designation of a Subsidiary as an Unrestricted Subsidiary (a “Revocation”) only if, immediately after the Effective Date will giving effect such Revocation:
(1) The Company would be able to Incur at least $1.00 of additional Indebtedness pursuant to Section 11.09(a);
(2) all Liens of such Unrestricted Subsidiary outstanding immediately following such Revocation would, if Incurred at such time, have been permitted to be Incurred for all purposes of this Agreement; and
(3) no Default or Event of Default has occurred and is continuing after giving effect to such Revocation.
(c) Any such Designation or Revocation shall be evidenced to the Administrative Agent each Holder by promptly delivering providing to the Administrative Agent each Holder a certificate of a Responsible Officer certified copy of the Borrower resolution of the Board of Directors of the Company giving effect to such Designation or Revocation, as the case may be, and an Officers’ Certificate certifying that the designation such Designation or Revocation complied with the foregoing provisionsconditions.
(d) A Revocation will be deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary. If, at any time, any Unrestricted Subsidiary would fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Agreement, and any Indebtedness of such Subsidiary shall be deemed to be Incurred as of such date.
(e) For purposes of this Section 11.13, Section 11.08 and the definitions of “Investment” and “Permitted Investment,” the Fair Market Value of the WMMRC-Related Assets shall be deemed at all times to be zero.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) Directors or chief financial officer of the Borrower Parent may designate any Subsidiary of the Parent (other than, after the consummation of a Holdco Transaction, the Borrower), including a newly acquired or created Subsidiary of the BorrowerParent, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower Parent or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual PropertyParent;
(ii) Parent would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate fair market value (as determined by the Borrower in good faith) of all Investments of Parent or its Restricted Subsidiaries in such Subsidiary (valued at Parent’s and its Restricted Subsidiaries’ proportional share of the fair market value (as determined by the Borrower in good faith) of such Subsidiary’s assets less liabilities);
(iii) any Guarantee or other credit support thereof by the Borrower Parent or any Restricted Subsidiary of the Borrower Parent is permitted under Section 6.01 6.1 or Section 6.086.7;
(iiiiv) neither the Borrower Parent nor any Restricted Subsidiary of the Borrower Parent has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 6.1 or Section 6.086.7;
(ivv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and;
(vvi) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower Parent or a Restricted Subsidiary of the BorrowerParent; and
(vii) such Subsidiary does not own (or hold an exclusive license in respect of) any Intellectual Property other than ownership or a license resulting from a Permitted IP Transfer. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(bii) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) The Board of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) Directors of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Parent may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (DoorDash, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer Directors of the Borrower Issuer may designate any Subsidiary of the Borrower, Issuer (including a any newly acquired or created newly formed Subsidiary of the Borrower, Issuer but excluding the Issuer) to be an Unrestricted Subsidiary if it meets unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on any property of, the following qualificationsIssuer or any other Subsidiary of the Issuer that is not a Subsidiary of the Subsidiary to be so designated; provided, however, that the Subsidiary to be so designated and its Subsidiaries do not at the time of designation have and do not thereafter Incur any Indebtedness pursuant to which the lender has recourse to any of the assets of the Issuer or any of its Restricted Subsidiaries; provided, further, however, that either:
(i) (A) such the Subsidiary does not own any Equity Interest to be so designated has total consolidated assets of the Borrower $1,000 or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;less; or
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted if such Subsidiary of the Borrower is has consolidated assets greater than $1,000, then such designation would be permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein3.4.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) The Board of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer Directors of the Borrower Issuer may designate an any Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.Subsidiary; provided, however, that immediately after giving effect to such designation:
(c1) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing the Issuer could Incur $1.00 of additional Indebtedness of pursuant to the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged Fixed Charge Coverage Ratio test described under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming3.3, or being deemed (2) 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 becomesuch designation, in each case on a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtednesspro forma basis taking into account such designation, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Indenture (Solgar)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower may designate any Subsidiary of the Borrower(other than any Subsidiary that is an obligor with respect to any Indebtedness incurred pursuant to Section 7.01(a)(xiii) or 7.01(a)(xiv)), including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:
sum of (i) the total assets of such Subsidiary (Aor, if any such Subsidiary itself has Subsidiaries, the consolidated total assets of such Subsidiary and its Consolidated Subsidiaries) and the total assets of every other Unrestricted Subsidiary (other than Cornerstone, the Specified Joint Ventures and the Excluded Partnerships and any Unrestricted Subsidiary that is an Unrestricted Subsidiary pursuant to Section 5.06(f)(A) or Section 5.06(f)(B) (so long as the Borrower is in compliance with the requirements of Section 5.06(f)(ii)), in each case determined as of the date of the Most Recent Financial Statements and (ii) the amount of any Investments made in the Specified Joint Ventures after the Fourth Amendment and Restatement Date (determined as of the date of such designation in accordance with the definition of “Investment”), does not exceed the greater of $200,000,000 and 5% of the Consolidated Total Assets of the Borrower and its Consolidated Subsidiaries (the “Designation Test”), the designation would not cause a Default and on a Pro Forma Basis, after giving effect to such designation, the Borrower shall be in compliance with the covenants set forth in Article 6 hereof; provided that: such Subsidiary does not own any Equity Interest capital stock of the Borrower or any other Restricted Subsidiary of the Borrower and (B) Subsidiary; such Subsidiary does not own hold any Material Intellectual Property;
(ii) Indebtedness of, or any Lien on any property of, the Borrower or any Restricted Subsidiary, in each case except to the extent permitted by Section 7.01 or 7.02, respectively; at the time of designation, the designation would be permitted under Section 7.08 and deemed an Investment in an Unrestricted Subsidiary or the assets of an Unrestricted Subsidiary thereunder; to the extent the Indebtedness of the Subsidiary is not Non-Recourse Debt, any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before Sections 7.01 and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation7.08; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject is not party to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower transaction or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and arrangement with the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will that would not be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if anypermitted under Section 7.04; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Kindred Healthcare, Inc)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer Directors of the Borrower Issuer or any direct or indirect parent of the Issuer may designate any Subsidiary of the Borrower, Issuer (including a any existing Subsidiary and any newly acquired or created newly formed Subsidiary of the Borrower, Issuer but excluding the Unsecured Notes Issuer) to be an Unrestricted Subsidiary if it meets unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on any property of, the following qualificationsIssuer or any other Subsidiary of the Issuer that is not a Subsidiary of the Subsidiary to be so designated; provided, however, that the Subsidiary to be so designated and its Subsidiaries do not at the time of designation have any Indebtedness pursuant to which the lender has recourse to any of the assets of the Issuer or any of its Restricted Subsidiaries; provided, further, however, that either:
(i) (A) such the Subsidiary does not own any Equity Interest to be so designated has total consolidated assets of the Borrower $1,000 or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;less; or
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted if such Subsidiary of the Borrower is has consolidated assets greater than $1,000, then such designation would be permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein3.4.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) The Board of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer Directors of the Borrower Issuer or any direct or indirect parent of the Issuer may designate an any Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.Subsidiary; provided, however, that immediately after giving effect to such designation:
(c1) Upon the Issuer could Incur $1.00 of additional Indebtedness as Ratio Debt or (2) the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such designation, in each case on a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurredPro Forma Basis taking into account such designation, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower Issuer may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualificationsqualifications and the designation would not cause a Default:
(i1) (A) such Such Subsidiary does not own any Equity Interest Capital Stock of the Borrower Issuer or any Restricted Subsidiary (other Restricted than a Subsidiary of the Borrower and Subsidiary to be so designated that is being concurrently designated as an Unrestricted Subsidiary) or hold any Debt of, or any Lien on any property of, the Issuer or any Restricted Subsidiary (B) such other than a Subsidiary does not own any Material Intellectual Property;of the Subsidiary to be so designated that is being concurrently designated as an Unrestricted Subsidiary).
(ii2) At the time of the designation, the designation would be permitted under Section 4.07 or as a Permitted Investment.
(3) To the extent the Debt of the Subsidiary is not Non-Recourse Debt, any Guarantee or other credit support thereof by the Borrower Issuer or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or 4.06 and Section 6.08;4.07.
(iii4) neither The Subsidiary is not party to any transaction or arrangement with the Borrower Issuer or any Restricted Subsidiary that would not be permitted under Section 4.13.
(5) Neither the Issuer nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results results, except to the extent permitted by Section 6.01 or 4.06 and Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower4.07. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bparagraph (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b1) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections paragraph (a)(i), (a)(ii), (a)(iii), (a)(iva) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection paragraph (d).
(2) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Issuer may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of a Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i1) all existing Indebtedness Investments of the Borrower Issuer and its Restricted Subsidiaries therein (valued at the Issuer’s proportional share of the fair market value of its assets less liabilities) will be deemed to be made at that time;
(2) all existing Capital Stock or Debt of the Issuer or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, to be Incurred at that time, and all Liens on property of the Borrower Issuer or a Restricted Subsidiary of the Borrower securing its obligations held by it will be deemed incurred to be Incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii3) all existing transactions between it and the Borrower Issuer or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv4) it will be automatically released at that time from its GuarantyNote Guarantee, if any, and the Security Documents; and
(v5) it will cease to be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)Subsidiary,
(i1) all of its Indebtedness, Liens Debt and Investments of such Subsidiary Disqualified or Preferred Stock will be deemed incurred to be Incurred at that time for purposes of Section 6.01 and 4.06, but will not be considered the sale or issuance of Equity Interests for purposes of Section 6.02, as applicable4.12;
(ii2) if it is a Material Domestic Restricted Subsidiary, Investments therein previously charged under Section 4.07 will be credited thereunder;
(3) it shall be required to become issue a Guarantor Note Guarantee pursuant to Section 5.104.10 and pledge its assets (other than Excluded Assets) as Collateral for the Notes pursuant to Section 4.20 to the extent required thereby; and
(iii4) it will thenceforward be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors of a Subsidiary as an a Restricted Subsidiary or Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent Trustee by promptly delivering filing with the Trustee a copy of the Board Resolution giving effect to the Administrative Agent a certificate of a Responsible Officer of the Borrower designation and an Officer’s Certificate certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Indenture (Roundy's, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board By resolution of directors the Board of Directors of the Issuer, any Subsidiary (or entity to become a committee thereofSubsidiary) or chief financial officer of the Borrower Issuer may designate any Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, be designated to be an Unrestricted Subsidiary if it meets the following qualificationsif:
(i1) the Subsidiary (Aor entity to become a Subsidiary) such Subsidiary to be so designated does not own any Equity Interest of Capital Stock or Debt of, or own or hold any Lien on any Property of, the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower Issuer or any Restricted Subsidiary of and does not have any Debt other than Non-Recourse Debt, and
(2) the Borrower is Issuer would be permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation 4.10 to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or make a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation Payment in an amount equal to the fair market value Fair Market Value of the Borrower’s Investment in such Subsidiary (or entity to become a Subsidiary). For the applicable purposes of this provision, in the event the Fair Market Value of such Investments exceeds $50.0 million, such Fair Market Value shall be determined by an Independent Financial Advisor. Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the Issuer will be classified as a Restricted Subsidiary at the time it becomes a Subsidiary’s Investment therein. If at any time an Unrestricted Subsidiary ceases to satisfy Section 4.15(a)(1) above, unless the Issuer is then able to redesignate such Unrestricted Subsidiary as a Restricted Subsidiary in accordance with this Indenture, the Issuer shall be in default of this Section 4.15.
(b) A Except as provided in this Section 4.15, and except as otherwise set forth in the definition of an "Unrestricted Subsidiary," no Restricted Subsidiary previously designated may be redesignated as an Unrestricted Subsidiary. In addition, neither the Issuer nor any Restricted Subsidiary which fails shall at any time be directly or indirectly liable for any Debt that provides that the holder thereof may (with the passage of time or notice or both) declare a default thereon or cause the payment thereof to meet be accelerated or payable prior to its Stated Maturity upon the qualifications set forth in subsections occurrence of a default with respect to any Debt, Lien or other obligation of any Unrestricted Subsidiary (a)(iincluding any right to take enforcement action against such Unrestricted Subsidiary), .
(a)(ii), (a)(iii), (a)(ivc) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer By resolution of the Borrower may designate an Board of Directors of the Issuer, any Unrestricted Subsidiary may be designated to be a Restricted Subsidiary if no Event of Default exists at the time if, immediately after giving pro forma effect to such designation,
(A) with respect to any Unrestricted Subsidiary of the designation and the designation would not cause an Event Issuer other than any Subsidiary of Default.
(c) Upon a Restricted Subsidiary becoming Quintiles that is an Unrestricted Subsidiary,
, immediately after giving effect to such transaction on a pro forma basis, the Issuer could incur $1.00 of additional Debt pursuant to clause (i) all existing Indebtedness of the Borrower or a Restricted Section 4.09(a), or
(B) with respect to any Subsidiary of the Borrower held by it will be deemed issued or incurredQuintiles that is an Unrestricted Subsidiary, as applicableimmediately after giving effect to such transaction on a pro forma basis, Quintiles could incur at that time, and all Liens on property least $1.00 of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
additional Debt pursuant to clause (ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.024.09(a), as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Indenture (Pharma Services Intermediate Holding Corp)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual PropertySubsidiary;
(ii) Borrower would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate Fair Market Value of all Investments of Borrower or its Restricted Subsidiaries in such Subsidiary;
(iii) any Guarantee guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.086.06;
(iiiiv) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.086.06;
(ivv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation;
(vi) immediately after giving effect to such designation, Borrower shall be in compliance, on a pro forma basis, with the covenants set forth in Article 7 for the Test Period then last ended (and, as a condition precedent to the effectiveness of any such designation, Borrower shall deliver to Administrative Agent a certificate setting forth in reasonable detail the calculations demonstrating such compliance); and
(vvii) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the BorrowerSubsidiary. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) (i) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(va)(vii) of this Section 5.12 5.13 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d). (ii) The Board of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Investments of Borrower and the Restricted Subsidiaries therein (valued at Borrower's proportional share of the Fair Market Value of its assets less liabilities) will be deemed made at that time;
(ii) all existing Equity Interest or Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, incurred at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations held by it will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically is released at that time from the Guaranty and the Pledge and Security Agreement and all related security interests on its Guaranty, if any; andproperty shall be released;
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b5.13(b),
(i) all of its Indebtedness, Liens Indebtedness and Investments of such Subsidiary Disqualified Equity Interests will be deemed incurred at that time for purposes of Section 6.01 and 6.01, but will not be considered the sale or issuance of Equity Interests for purposes of Section 6.02, as applicable6.08;
(ii) if Investments therein previously charged under Section 6.06 will be credited thereunder;
(iii) it is a Material Domestic Restricted Subsidiary, it shall may be required to become a Guarantor pursuant to Section 5.105.09; and
(iiiiv) it will thenceforward be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors of a Subsidiary as an Unrestricted Subsidiary after the Effective Closing Date will be evidenced to the Administrative Agent by promptly delivering to the filing with Administrative Agent a copy of the resolutions of the Board of Directors giving effect to the designation and a certificate of a Responsible Officer an officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Cypress Semiconductor Corp /De/)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer Directors of the Borrower Parent may designate any Restricted Subsidiary of the (other than a Borrower, including a newly acquired or created Subsidiary of the Borrower, to be ) as an Unrestricted Subsidiary if it meets the following qualifications:
or any Unrestricted Subsidiary as a Restricted Subsidiary; provided, that (i) (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from continuing, (ii) the Group shall be in compliance with the financial covenant set forth in Section 6.07 on a pro forma basis after giving effect to such designation; and
designation as of the last day of the Fiscal Quarter most recently ended and (viii) no Restricted Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain was previously designated as an Unrestricted Subsidiary, subject Subsidiary pursuant to this Section 5.12(b)5.19. The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment equal to the aggregate fair market value of all outstanding Investments owned by the Borrower Parent and the Restricted Subsidiaries in the Subsidiary as of the time of the designation, as determined by the Parent. Such designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (i) the incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time and (ii) a return on any Investment by the applicable Restricted Subsidiary therein at Loan Party in Unrestricted Subsidiaries pursuant to the date of designation preceding sentence in an amount equal to the fair market value at the date of the Borrower’s or the applicable Restricted Subsidiarysuch designation of such Loan Party’s Investment therein.
in such Subsidiary. Notwithstanding the foregoing (bi) A Subsidiary previously no Borrower may be designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will no Person may be credited thereunder;
(iii) all existing transactions between it and the Borrower designated as an “Unrestricted Subsidiary” if such Person is not an “Unrestricted Subsidiary” or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a “Guarantor” under any Senior Notes, the Senior Refinancing Notes or under any agreement, document or instrument evidencing any Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted SubsidiaryIndebtedness.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower Issuer may designate after the Issue Date any Subsidiary of the Borrower, Parent (other than the Issuer) (including a any newly acquired or created Subsidiary of the Borrower, to be newly formed Subsidiary) as an “Unrestricted Subsidiary if it meets the following qualificationsSubsidiary” under this Indenture (a “Designation”) only if:
(ia) (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have has occurred and be is continuing or would result from after giving effect to such designationDesignation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet either (x) the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted so designated has total consolidated assets of $1,000 or less or (y) if such Subsidiary if no Event of Default exists at the time of the designation and the designation has consolidated assets greater than $1,000, then such Designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged permitted under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or 4.07. The Issuer may revoke any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower Designation of a Subsidiary as an Unrestricted Subsidiary (a “Revocation”) only if, immediately after giving effect such Revocation:
(a) either (i) the Effective Date will Parent would be entitled to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.09(a), or (ii) the Fixed Charge Coverage Ratio would not be lower or the Consolidated Total Debt Ratio would not be higher, in each case on a pro forma basis taking into account such Revocation, than it was immediately prior to such Revocation;
(b) all Liens of such Unrestricted Subsidiary outstanding immediately following such Revocation would, if Incurred at such time, have been permitted to be Incurred for all purposes of this Indenture; and
(c) no Default or Event of Default has occurred and is continuing after giving effect to such Revocation. Notwithstanding anything else herein to the contrary, the Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, sell, convey, transfer or otherwise dispose of (including pursuant to an Investment) any Material Intellectual Property that is owned by, or exclusively licensed to, the Issuer or any Subsidiary Guarantor to any Unrestricted Subsidiary. Each Designation and Revocation must be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent Trustee a certificate of a Responsible Officer board resolution of the Borrower Board of Directors of the Issuer giving effect to such Designation or Revocation, as the case may be, and an Officer’s Certificate certifying that the designation complied compliance with the foregoing preceding provisions. A Revocation will be deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary.
Appears in 1 contract
Samples: Indenture (Endo, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualificationsqualifications and the designation would not cause a Default:
(i1) (A) such Such Subsidiary does not own any Equity Interest Capital Stock of the Borrower Company or any other Restricted Subsidiary of or hold any Debt of, or any Lien on any property of, the Borrower and (B) such Subsidiary does not own Company or any Material Intellectual PropertyRestricted Subsidiary;
(ii2) At the time of designation, the designation would be permitted under Section 4.07;
(3) To the extent the Debt of the Subsidiary is not Non-Recourse Debt, any Guarantee or other credit support thereof by the Borrower Company or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or 4.06 and Section 6.084.07;
(iii4) neither The Subsidiary is not party to any transaction or arrangement with the Borrower Company or any Restricted Subsidiary that would be prohibited by Section 4.14; and
(5) Neither the Company nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or 4.06 and Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower4.07. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bparagraph (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b1) A Subsidiary previously designated as an Unrestricted Subsidiary which at any time fails to meet the qualifications set forth in subsections paragraph (a)(i), (a)(ii), (a)(iii), (a)(iva) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection paragraph (d).
(2) The Board of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of a Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i1) all existing Indebtedness Investments of the Borrower or a Company and the Restricted Subsidiary Subsidiaries therein (valued at the Company’s proportional share of the Borrower held by it Fair Market Value of its assets less liabilities) will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred made at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii2) all existing transactions between it and the Borrower Company or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv3) it will be automatically is released at that time from its Note Guaranty, if any; and
(v4) it will cease to be subject to the provisions of this Agreement the Indenture as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)Subsidiary,
(i1) all of its Indebtedness, Liens Debt and Investments of such Subsidiary Disqualified or Preferred Stock will be deemed incurred Incurred at that time for purposes of Section 6.01 and 4.06, but will not be considered the sale or issuance of Equity Interests for purposes of Section 6.02, as applicable4.13;
(ii2) if Investments therein previously charged under Section 4.07 will be credited thereunder;
(3) it is a Material Domestic Restricted Subsidiary, it shall may be required to become issue a Guarantor Note Guaranty of the Notes pursuant to Section 5.104.11; and
(iii4) it will thenceforward be subject to the provisions of this Agreement the Indenture as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors of a Subsidiary as an a Restricted Subsidiary or Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent Trustee by promptly delivering filing with the Trustee a copy of the Board Resolution giving effect to the Administrative Agent a certificate of a Responsible Officer of the Borrower designation and an Officer’s Certificate certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Indenture (J2 Global, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of After the Borrower Issue Date, the Issuer may designate any Subsidiary of the Borrower, Issuer (including a newly any acquired or created Subsidiary of the Borrower, newly formed Subsidiary) to be an Unrestricted Subsidiary if it meets unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or holds any Lien on any assets of, the following qualificationsIssuer or any other Subsidiary of the Issuer that is not a Subsidiary of the Subsidiary to be so designated; provided that:
(i1) (A) such Subsidiary does not own any Equity Interest of the Borrower no Default has occurred and is continuing or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Propertywould occur as a consequence thereof;
(ii2) any Guarantee (x) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception or other credit support thereof by (y) the Borrower or any Restricted Subsidiary Consolidated Coverage Ratio of the Borrower Issuer and the Restricted Subsidiaries is permitted under Section 6.01 equal to or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation greater than immediately prior to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v3) no either (x) the Subsidiary may to be so designated has total assets of $1,000 or less or (y) if such Subsidiary has assets greater than $1,000, such designation would be permitted under Section 4.07 (treating the Fair Market Value of the Issuer’s proportionate interest in the net worth of such Subsidiary on such date calculated in accordance with GAAP as the amount of the Investment). Any designation of a Subsidiary of the Issuer as an Unrestricted Subsidiary if it is will be evidenced to the Trustee by filing with the Trustee a “restricted subsidiary” or certified copy of a “guarantor” (or any similar designation) for any other Indebtedness resolution of the Borrower or a Restricted Subsidiary Board of Directors giving effect to such designation and an officers’ certificate certifying that such designation complied with the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to preceding conditions and was permitted by Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein4.07.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) The Board of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.Subsidiary; provided that:
(c1) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,no Default has occurred and is continuing; and
(i2) all existing Indebtedness of the Borrower or a Restricted such Unrestricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property any asset of the Borrower or a Restricted such Unrestricted Subsidiary of the Borrower securing its obligations will be deemed outstanding immediately following such redesignation would, if incurred at that such time;
(ii) all Investments therein previously charged under Section 6.08 will , be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease permitted to be subject to the provisions of incurred under this Agreement as a Restricted SubsidiaryIndenture.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Indenture (Koppers Holdings Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Restricted Subsidiary or other Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, Issuer to be an Unrestricted Subsidiary if it meets the following qualificationsif:
(ia) (A) such the Subsidiary to be so designated does not own any Equity Interest of Capital Stock or Debt of, or own or hold any Lien on any Property of, the Borrower Issuer or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;Subsidiary,
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(ivb) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; continuing, and
(vc) no any of the following:
(i) the Subsidiary may to be so designated has total assets of $10,000 or less,
(ii) if the Subsidiary has consolidated assets greater than $10,000, then the designation would be permitted under Section 4.05, or
(iii) the designation is effective immediately upon the entity becoming a Subsidiary of the Issuer (as designated by the Board of Directors in the manner provided in this Section 4.10). Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the Issuer will be classified as a Restricted Subsidiary; provided, however, that the Subsidiary shall not be designated a Restricted Subsidiary and shall be automatically classified as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness either of the Borrower or requirements set forth in clauses (x) and (y) of the second immediately following paragraph will not be satisfied after giving pro forma effect to the classification as a Restricted Subsidiary or if the Person is a Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary. Except as provided in the first sentence of the first paragraph of this covenant, subject to Section 5.12(b)no Restricted Subsidiary may be redesignated as an Unrestricted Subsidiary. The designation of In addition, neither the Issuer nor any Restricted Subsidiary shall at any time be directly or indirectly liable for any Debt that provides that the holder thereof may (with the passage of time or notice or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its Stated Maturity upon the occurrence of a default with respect to any Debt, Lien or other obligation of any Unrestricted Subsidiary in existence and classified as an Unrestricted Subsidiary after at the Effective Date shall constitute an Investment by time the Borrower Issuer or the applicable Restricted Subsidiary therein at the date of designation in an amount equal is liable for that Debt (including any right to the fair market value of the Borrower’s or the applicable Restricted take enforcement action against that Unrestricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board Board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an any Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurredif, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject immediately after giving pro forma effect to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)designation,
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower may designate any Subsidiary of the Borrower(other than any Subsidiary that is an obligor with respect to any Indebtedness incurred pursuant to Section 7.01(a)(xiii) or 7.01(a)(xiv)), including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualificationssum of (i) the total assets of such Subsidiary (or, if any such Subsidiary itself has Subsidiaries, the consolidated total assets of such Subsidiary and its Consolidated Subsidiaries) and the total assets of every other Unrestricted Subsidiary (other than Cornerstone, the Specified Joint Ventures and the Excluded Partnerships and any Unrestricted Subsidiary that is an Unrestricted Subsidiary pursuant to Section 5.06(f)(A) or Section 5.06(f)(B) (so long as the Borrower is in compliance with the requirements of Section 5.06(f)(ii)), in each case determined as of the date of the Most Recent Financial Statements and (ii) the amount of any Investments made in the Specified Joint Ventures after the Fourth Amendment and Restatement Date (determined as of the date of such designation in accordance with the definition of “Investment”), does not exceed the greater of $200,000,000 and 5% of the Consolidated Total Assets of the Borrower and its Consolidated Subsidiaries (the “Designation Test”), the designation would not cause a Default and on a Pro Forma Basis, after giving effect to such designation, the Borrower shall be in compliance with the covenants set forth in Article 6 hereof; provided that:
(i) (A) such Subsidiary does not own any Equity Interest capital stock of the Borrower or any other Restricted Subsidiary of the Borrower and Subsidiary;
(Bii) such Subsidiary does not own hold any Material Intellectual PropertyIndebtedness of, or any Lien on any property of, the Borrower or any Restricted Subsidiary, in each case except to the extent permitted by Section 7.01 or 7.02, respectively;
(iiiii) at the time of designation, the designation would be permitted under Section 7.08 and deemed an Investment in an Unrestricted Subsidiary or the assets of an Unrestricted Subsidiary thereunder;
(iv) to the extent the Indebtedness of the Subsidiary is not Non-Recourse Debt, any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08Sections 7.01 and 7.08;
(iiiv) the Subsidiary is not party to any transaction or arrangement with the Borrower or any Restricted Subsidiary that would not be permitted under Section 7.04; and
(vi) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before Sections 7.01 and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein7.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Fifth Amendment and Restatement Agreement (Kindred Healthcare, Inc)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual PropertySubsidiary;
(ii) the Borrower would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate fair market value of all Investments of the Borrower or its Restricted Subsidiaries in such Subsidiary;
(iii) any Guarantee guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.086.06;
(iiiiv) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.086.06;
(ivv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(vvi) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the BorrowerSubsidiary. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) (i) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i5.12(a)(i), (a)(ii5.12(a)(iii), (a)(iii), (a)(iv5.12(a)(iv) or (a)(v5.12(a)(vi) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default).
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, Borrower to be an Unrestricted Subsidiary if it meets the following qualificationsif:
(i1) (A) such the Subsidiary to be so designated does not own any Equity Interest of Capital Stock or Debt of, or own or hold any Lien on any Property of, the Borrower or any other Restricted Subsidiary; and
(2) either:
(A) the Subsidiary to be so designated has total assets of $1,000 or less or
(B) such designation is effective immediately upon such entity becoming a Subsidiary of the Borrower. Unless designated as an Unrestricted Subsidiary in accordance with clause (a)(2)(B) above, any Person that becomes a Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;will be classified as a Restricted Subsidiary.
(iib) any Guarantee or other credit support thereof by the Borrower or any Except as provided in clause (a) above, no Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) may be redesignated as an Unrestricted Subsidiary. In addition, neither the Borrower nor any Restricted Subsidiary shall at any time be directly or indirectly liable for any Debt that provides that the holder thereof may (with the passage of time or notice or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its Stated Maturity upon the occurrence of a default with respect to any Debt, Lien or other obligation of any Unrestricted Subsidiary (including any right to take enforcement action against such Unrestricted Subsidiary). Upon designation of a Restricted Subsidiary as an Unrestricted Subsidiary in compliance with Section 6.12(a), such Restricted Subsidiary shall automatically be released from any Subsidiary Guarantee previously made by such Restricted Subsidiary.
(c) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary if, immediately after giving pro forma effect to such designation,
(1) either (i) the Borrower has any obligation could incur at least $1.00 of additional Debt pursuant to subscribe for additional Equity Interests clause (1) of such Subsidiary Section 6.05(a) or (ii) the Borrower’s ratio of total Debt to maintain Consolidated EBITDA (determined as set forth in clause (1) of Section 6.05(a)) would be less than or preserve its financial condition or cause it to achieve specified levels of operating results except equal to the extent permitted by Section 6.01 or Section 6.08;Borrower’s ratio of total Debt to Consolidated EBITDA (determined as provided above) immediately prior to such designation and
(iv2) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiarytherefrom.
(d) Upon an Unrestricted Subsidiary becoming, Any such designation or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation redesignation by the board Board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date Directors will be evidenced to the Administrative Agent by promptly delivering to filing with the Administrative Agent a certificate Board Resolution giving effect to such designation or redesignation and an Officers’ Certificate that
(1) certifies that such designation or redesignation complies with the foregoing provisions and
(2) gives the effective date of a Responsible Officer such designation or redesignation, such filing with the Administrative Agent to occur within 45 days after the end of the fiscal quarter of the Borrower certifying that in which such designation or redesignation is made (or, in the case of a designation complied with or redesignation made during the foregoing provisionslast fiscal quarter of the Borrower’s fiscal year, within 90 days after the end of such fiscal year).
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board TheAfter the Amendment No. 5 Effective Date, so long as the Net Debt Condition is satisfied at such time, the Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the Parent (other than the Borrower), including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower any Obligor or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual PropertySubsidiary;
(ii) the Parent would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate fair market value of all Investments of the Obligors and their Restricted Subsidiaries in such Subsidiary;
(iii) any Guarantee guarantee or other credit support thereof by the Borrower any Obligor or any other Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.086.06;
(iiiiv) neither the Borrower nor any Restricted Subsidiary none of the Borrower Obligors or their respective Restricted Subsidiaries has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.086.06;
(ivv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(vvi) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower Obligors or a their respective Restricted Subsidiary of the BorrowerSubsidiaries. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i5.12(a)(i), (a)(ii5.12(a)(iii), (a)(iii), (a)(iv5.12(a)(iv) or (a)(v5.12(a)(vi) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12). The board Board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Investments of the Obligors and their respective Restricted Subsidiaries therein (valued at the Borrower’s proportional share of the fair market value of its assets less liabilities) will be deemed made at that time;
(ii) all existing Indebtedness of the Borrower any Obligor or a its Restricted Subsidiary of the Borrower Subsidiaries held by it will be deemed issued or incurred, as applicable, incurred at that time, and all Liens on property of the Borrower any Obligor or a its Restricted Subsidiary of the Borrower securing its obligations Subsidiaries held by it will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower any Obligor or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically is released at that time from the Loan Documents to which it is a party and all related security interests on its Guaranty, if anyproperty shall be released; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary Indebtedness will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable6.01;
(ii) Investments therein previously charged under Section 6.06 will be credited thereunder;
(iii) if it is a Material Domestic Restricted Subsidiary and a Wholly-Owned Subsidiary of the Parent (unless it is an Excluded Subsidiary), it shall be required to become a Guarantor pursuant to Section 5.10this Agreement; and
(iiiiv) it will thenceforward be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors of a Subsidiary as an Unrestricted Subsidiary or a Restricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to filing with the Administrative Agent a copy of the resolutions of the Board of Directors giving effect to the designation and a certificate of a Responsible Officer an officer of the Borrower Parent certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower may designate any Restricted Subsidiary of the Borrower, including a or newly acquired or created Subsidiary of the Borrower, to be formed subsidiary as an Unrestricted Subsidiary if it meets or any Unrestricted Subsidiary or newly acquired or formed subsidiary as a Restricted Subsidiary, in each case subject to satisfaction of each of the following qualificationsconditions:
(i) (A) immediately before and after giving effect to such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower designation, no Default shall exist and (B) such Subsidiary does not own any Material Intellectual Propertybe continuing;
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary would have been in compliance with every provision of this Agreement as at the end of the Borrower is permitted under Section 6.01 or Section 6.08most recently ended Fiscal Quarter as if such designation had taken place as at the commencement of the four Fiscal Quarter period ending at such Fiscal Quarter end;
(iii) neither the Borrower nor designation of Unrestricted Subsidiaries after the Refunding Effective Date shall not exceed at any Restricted Subsidiary time 5% of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08Borrower's consolidated assets;
(iv) immediately before and after giving effect to such designation, no Default (y) the Borrower would be permitted to incur at least $1 of additional Indebtedness in accordance with the provisions of clause (h) of Section 8.2.2, other than in the case of a designation of an Unrestricted Subsidiary that does not have any Indebtedness as a Restricted Subsidiary, and (z) the Borrower and the Restricted Subsidiaries would not be liable with respect to any Indebtedness or Event guarantee, would not own any Investments and their property would not be subject to any Lien not permitted by the terms of Default shall have occurred Section 8.2.2, Section 8.2.3 and be continuing or would result from such designation; andSection 8.2.5;
(v) no Subsidiary may be designated in the case of a designation as an Unrestricted Subsidiary, (x) if such designation (and all other prior designations of Restricted Subsidiaries or newly acquired or formed Subsidiaries as Unrestricted Subsidiaries during the then current Fiscal Year) were deemed to constitute a sale by the Borrower of all the assets (other than cash in the case of newly acquired or newly formed businesses) of the Subsidiary so designated, such sale would be in compliance with section (a) of Section 8.2.8 and (y) if it is such designation (and all other prior designations of Restricted Subsidiaries or newly acquired or formed Subsidiaries as Unrestricted Subsidiaries during the current fiscal year) were deemed to constitute an Investment by the Borrower in respect of all the assets of the Borrower so designated, such Investment would be in compliance with clause (i) of Section 8.2.5, in each case with the net proceeds of such sale or the amount of such Investment being deemed to equal the net book value of such assets in the case of a “restricted subsidiary” Restricted Subsidiary or the cost of acquisition or formation in the case of a “guarantor” newly acquired or formed Subsidiary, provided, that this subdivision (v) shall not apply to an acquisition or any similar designation) for any other Indebtedness of formation by the Borrower or a Restricted Subsidiary of a newly acquired or formed Unrestricted Subsidiary to the Borrower. Once so designated, extent such acquisition or formation (1) is funded solely by the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The net cash proceeds received by the Borrower from either General Partner or the Public Partnership as a capital contribution or as consideration for the issuance by the Borrower of additional partnership interests or (2) the assets involved in such acquisition are acquired in exchange for additional partnership interests of the Borrower or the Public Partnership;
(vi) in the case of a designation of any a Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Subsidiary, such Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as shall not have been an Unrestricted Subsidiary which fails prior to meet being designated a Restricted Subsidiary;
(vii) the qualifications set Borrower shall deliver to each Lender, within 20 Business Days after any such designation, an Officer's Certificate stating the effective date of such designation and stating that the foregoing conditions have been satisfied. Such certificate shall be accompanied by a schedule setting forth in subsections reasonable detail the calculations demonstrating compliance with such conditions, where appropriate; and
(a)(i), (a)(ii), (a)(iii), (a)(ivviii) or (a)(v) in the case of this Section 5.12 will be deemed to become at that time the designation of any Unrestricted Subsidiary as a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a such new Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
shall be deemed to have (ca) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) made or acquired all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held Investments owned by it will be deemed issued or incurred, as applicable, at that time, and (b) incurred all Indebtedness owing by it and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between to which it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtednessproperties are subject, Liens and Investments on the date of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiarydesignation.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. Under “Description of Exchange Notes – Certain Covenants” a new provision will be added under the heading “Designation of Restricted and Unrestricted Subsidiaries” as follows: “The Company shall not designate (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower may designate any Australian Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, to be an Unrestricted Subsidiary if it meets the following qualifications:
other than Australian Subsidiaries (together with all other Australian Subsidiaries that constitute Unrestricted Subsidiaries) (i) (A) such Subsidiary does not own any Equity Interest that, as of the Borrower or any other Restricted Subsidiary date of such designation, own less than 10% of the Borrower assets owned by all Australian Subsidiaries as of the end of the four-quarter period immediately preceding such date and (B) such Subsidiary does not own any Material Intellectual Property;
for which financial information is available, and (ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary from which, as of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary date of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event less than 10% of Default shall have occurred Australian Net Income and Australian EBITDA of all Australian Subsidiaries are derived, in each case, for the four-quarter period immediately preceding such date and for which financial information is available and (b) any Canadian Subsidiary to be continuing or would result from an Unrestricted Subsidiary other than Canadian Subsidiaries (together with all other Canadian Subsidiaries that constitute Unrestricted Subsidiaries) (i) that, as of the date of such designation, own less than 10% of the assets owned by all Canadian Subsidiaries as of the end of the four-quarter period immediately preceding such date and for which financial information is available, and (ii) from which, as of the date of such designation, less than 10% of Canadian Net Income and Canadian EBITDA of all Canadian Subsidiaries are derived, in each case, for the four-quarter period immediately preceding such date and for which financial information is available; and
provided that, in the case of each of clauses (va) no Subsidiary may and (b) above, such Subsidiaries otherwise satisfy all of the criteria to be designated as an “Unrestricted Subsidiary if it is a Subsidiaries” pursuant to this covenant.” In addition, definitions for the terms “restricted subsidiaryAustralian Net Income”, “Australian EBITDA”, “Canadian Net Income” or a and “guarantorCanadian EBITDA” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, added as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.follows:
Appears in 1 contract
Samples: Support Agreement (Primus Telecommunications Group Inc)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) Directors or chief financial officer of the Borrower Parent may designate any Subsidiary of the Parent (other than, after the consummation of a Holdco Transaction, the Borrower), including a newly acquired or created Subsidiary of the BorrowerParent, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower Parent or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual PropertyParent;
(ii) Parent would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate fair market value (as determined by the Borrower in good faith) of all Investments of Parent or its Restricted Subsidiaries in such Subsidiary (valued at Parent’s and its Restricted Subsidiaries’ proportional share of the fair market value (as determined by the Borrower in good faith) of such Subsidiary’s assets less liabilities);
(iii) any Guarantee or other credit support thereof by the Borrower Parent or any Restricted Subsidiary of the Borrower Parent is permitted under Section 6.01 6.1 or Section 6.086.7;
(iiiiv) neither the Borrower Parent nor any Restricted Subsidiary of the Borrower Parent has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 6.1 or Section 6.086.7;
(ivv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(vvi) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower Parent or a Restricted Subsidiary of the BorrowerParent. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) (i) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(va)(vi) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (DoorDash Inc)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower Parent may designate any Subsidiary of the Borrower, (including a any newly acquired or created Subsidiary of the Borrower, newly formed Subsidiary) to be an Unrestricted Subsidiary if it meets unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or holds any Lien on any assets of, the following qualificationsParent or any other Subsidiary that is not a Subsidiary of the Subsidiary to be so designated; provided that:
(i1) (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have has occurred and be is continuing or would result from occur as a consequence thereof; or
(2) (x) the Parent could Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof or (y) the Fixed Charge Coverage Ratio of the Parent and the Restricted Subsidiaries is equal to or greater than immediately prior to such designation; and
(v3) no either (x) the Subsidiary may to be so designated as an Unrestricted has Total Assets of $1,000 or less or (y) if such Subsidiary if it is a “restricted subsidiary” or a “guarantor” has assets greater than $1,000, such designation would be permitted under Section 4.07 hereof (or any similar designation) for any other Indebtedness treating the Fair Market Value of the Borrower or a Restricted Parent’s proportionate interest in the net worth of such Subsidiary on such date calculated in accordance with GAAP as the amount of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bInvestment). The designation of Parent may re-designate any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.Subsidiary; provided that:
(c1) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,no Default has occurred and is continuing; and
(i2) all existing Indebtedness of the Borrower or a Restricted such Unrestricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property any asset of the Borrower or a Restricted such Unrestricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in outstanding immediately following such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guarantyre-designation would, if any; and
(v) it will cease Incurred at such time, be permitted to be subject to the provisions of Incurred under this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Indenture. Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary after Subsidiary, as the Effective Date will case may be, shall be evidenced to approved by the Administrative Agent by promptly delivering to the Administrative Agent a certificate Board of a Responsible Officer Directors of the Borrower certifying that the designation complied with the foregoing provisionsParent.
Appears in 1 contract
Samples: Indenture (Tronox LTD)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer Directors of the Borrower Issuer or any direct or indirect parent of the Issuer may designate any Subsidiary of the Borrower, Issuer (including a any existing Subsidiary and any newly acquired or created newly formed Subsidiary of the Borrower, Issuer but excluding the Issuer) to be an Unrestricted Subsidiary if it meets unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on any property of, the following qualificationsIssuer or any other Subsidiary of the Issuer that is not a Subsidiary of the Subsidiary to be so designated; provided, however, that the Subsidiary to be so designated and its Subsidiaries do not at the time of designation have any Indebtedness pursuant to which the lender has recourse to any of the assets of the Issuer or any of its Restricted Subsidiaries; provided, further, however, that either:
(i) (A) such the Subsidiary does not own any Equity Interest to be so designated has total consolidated assets of the Borrower $1,000 or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;less; or
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted if such Subsidiary of the Borrower is has consolidated assets greater than $1,000, then such designation would be permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein3.4.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) The Board of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer Directors of the Borrower Issuer or any direct or indirect parent of the Issuer may designate an any Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.Subsidiary; provided, however, that immediately after giving effect to such designation:
(c1) Upon the Issuer could Incur $1.00 of Ratio Debt or (2) the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such designation, in each case on a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurredPro Forma Basis taking into account such designation, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:qualifications and the designation would not cause a Default.
(i1) (A) such The Subsidiary does not own any Equity Interest Disqualified Stock of the Borrower Company or Disqualified Stock or Preferred Stock of a Restricted Subsidiary or hold any Debt of, or any other Lien on any property of, the Company or any Restricted Subsidiary Subsidiary, if such Disqualified Stock or Preferred Stock or Debt could not be Incurred under the provisions of Section 6.1 or such Lien would violate the Borrower and provisions of Section 6.3; and
(B2) such the Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary Voting Stock of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary Subsidiary, and all of the Borrowerits Subsidiaries are Unrestricted Subsidiaries. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bparagraph (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b1) A Subsidiary previously designated as an Unrestricted Subsidiary which fails at any time to meet the qualifications set forth in subsections paragraph (a)(i), (a)(ii), (a)(iii), (a)(iva) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection paragraph (d).
(2) The Board of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of a Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i1) all existing Indebtedness Investments of the Borrower Company and the Restricted Subsidiaries therein (valued at the Company's proportional share of the Fair Market Value of its assets less liabilities) will be deemed made at that time;
(2) all existing Capital Stock or Debt of the Company or a Restricted Subsidiary of the Borrower held by it such Unrestricted Subsidiary will be deemed issued or incurred, as applicable, Incurred at that time, and all Liens on property of the Borrower Company or a Restricted Subsidiary of the Borrower securing its obligations held by such Unrestricted Subsidiary will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii3) all existing transactions between it such Unrestricted Subsidiary and the Borrower Company or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv4) it such Unrestricted Subsidiary will be automatically released at that time from its Guarantyguarantee of the Obligations, if any; and
(v5) it such Unrestricted Subsidiary will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)Subsidiary,
(i1) all of its Indebtedness, Liens Debt and Investments of such Subsidiary Disqualified or Preferred Stock will be deemed incurred Incurred at that time for purposes of the covenant set forth in Section 6.01 and 6.1, but will not be considered the sale or issuance of Equity Interests for purposes of the covenants set forth in Section 6.02, as applicable6.6 or Section 6.7;
(ii2) if Investments therein previously charged under the covenant set forth in Section 6.2 will be credited thereunder;
(3) it is a Material Domestic Restricted Subsidiary, it shall may be required to become a Guarantor guarantee the Obligations pursuant to Section 5.10; and
(iii4) it will be become subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer Directors of the Borrower Company of a Subsidiary as an a Restricted Subsidiary or Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to filing with the Administrative Agent a certificate of a Responsible Officer copy of the Borrower Board Resolution giving effect to the designation and an Officer's Certificate certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Letter of Credit Facility Agreement (McDermott International Inc)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower may designate any Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, to be Unless designated as an Unrestricted Subsidiary if it meets the following qualifications:
on Schedule 7.14 as of June 9, 2014 or thereafter, in compliance with Section 9.19(b) or (i) (A) such d), any Person that becomes a Subsidiary does not own any Equity Interest of the Borrower or any other of its Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;Subsidiaries shall be classified as a Restricted Subsidiary.
(iib) any Guarantee or other credit support The Borrower may designate by written notification thereof by to the Borrower or Administrative Agent, any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary Subsidiary, including a newly or to maintain be formed or preserve its financial condition newly or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designationbe acquired Subsidiary, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it (i) prior, and immediately after giving effect, to such designation, neither a Default nor a Borrowing Base deficiency would exist and (ii) such designation is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain deemed to be an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as Investment in an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value as of the date of such designation of the Borrower’s or and its Restricted Subsidiaries’ direct ownership interests in such Subsidiary and such Investment would be permitted to be made at the applicable time of such designation under Section 9.05(n). Except as provided in this Section 9.19(b), no Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously may be designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections Subsidiary.
(a)(i), (a)(ii), (a)(iii), (a)(ivc) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an any Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at immediately after giving effect to such designation, (i) the time representations and warranties of the Borrower and its Restricted Subsidiaries contained in each of the Loan Documents are true and correct in all material respects on and as of such date as if made on and as of the date of such redesignation (or, if stated to have been made expressly as of an earlier date, were true and correct in all material respects as of such date), (ii) no Default exists, (iii) the Borrower complies with the requirements of Section 8.14(b) and Section 8.18 and (iv) the Borrower and/or one or more Restricted Subsidiaries owns all of the Equity Interests in such Subsidiary. Any such designation shall be treated as a cash dividend to the Borrower in an amount equal to the lesser of the fair market value of the Borrower’s and its Restricted Subsidiaries’ direct ownership interests in such Subsidiary or the amount of the Borrower’s and its Restricted Subsidiaries’ aggregate investment previously made for purposes of the limitation on Investments under Section 9.05(n). Upon the designation would not cause of an Event of DefaultUnrestricted Subsidiary as a Restricted Subsidiary, all Investments previously made in such Unrestricted Subsidiary shall no longer be counted in determining the limitation on Investments under Section 9.05(n).
(cd) Each Subsidiary of an Unrestricted Subsidiary shall automatically be designated as an Unrestricted Subsidiary.
(e) Upon designation of a Restricted Subsidiary becoming as an Unrestricted Subsidiary,
Subsidiary in compliance with Section 9.19(b), (i) such Subsidiary shall be automatically released from all existing Indebtedness of obligations, if any, under the Borrower or a Restricted Subsidiary of Loan Documents, including the Borrower held by it will be deemed issued or incurred, as applicable, at that time, Guaranty Agreement and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
other applicable Security Instruments and (ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) Liens granted pursuant to the Guaranty Agreement and all existing transactions between it other applicable Security Instruments on the Property of, and the Borrower Equity Interests in, such Unrestricted Subsidiary shall be automatically released.”
2.79 Amendment to Sections 10.01(c) through (g). Sections 10.01(c) through (g) are hereby amended by deleting such Sections in their entirety and replacing it with the following: “(c) any representation or any Restricted Subsidiary warranty made or deemed made by or on behalf of the Borrower (including Investments of Parent Guarantor, the Borrower or any Restricted Subsidiary in or in connection with any Loan Document or any amendment or modification of any Loan Document or waiver under such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becomingLoan Document, or being deemed to becomein any report, a Restricted Subsidiary certificate, financial statement or other document furnished pursuant to Section 5.12(b),
(i) all of its Indebtednessor in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, Liens and Investments of such Subsidiary will be shall prove to have been materially incorrect when made or deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiarymade.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower Issuer may designate any Restricted Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, Issuer to be an Unrestricted Subsidiary if it meets the following qualificationsSubsidiary; provided that:
(i) any guarantee by the Issuer or any Restricted Subsidiary thereof of any Indebtedness of the Subsidiary being so designated will be deemed to be an Incurrence of Indebtedness by the Issuer or such Restricted Subsidiary (Aor both, if applicable) at the time of such designation, and such Incurrence of Indebtedness would be permitted under Section 6.10;
(ii) the aggregate Fair Market Value of all outstanding Investments owned by the Issuer and its Restricted Subsidiaries in the Subsidiary being so designated (including any guarantee by the Issuer or any Restricted Subsidiary thereof of any Indebtedness of such Subsidiary) will, unless it otherwise constitutes a Permitted Investment, be deemed to be a Restricted Investment made as of the time of such designation and that such Investment would be permitted under Section 6.9;
(iii) such Subsidiary does not own hold any Equity Interest Liens on any property of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower Issuer or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08thereof;
(iiiiv) the Subsidiary being so designated:
(A) is a Person with respect to which neither the Borrower Issuer nor any of its Restricted Subsidiary of the Borrower Subsidiaries has any direct or indirect obligation (i) to subscribe for additional Equity Interests of such Subsidiary or (ii) to maintain or preserve its such Person’s financial condition or to cause it such Person to achieve any specified levels of operating results results;
(B) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or any of its Restricted Subsidiaries, except to the extent such guarantee or credit support would be released upon such designation; and
(C) is not a party to any agreement or understanding with the Issuer or any of its Restricted Subsidiaries unless the terms of any such agreement would be permitted under Section 6.12; and
(v) no Default or Event of Default would be in existence following such designation.
(b) Any designation of a Restricted Subsidiary of the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by the Issuer providing a copy of a written notice of the Chief Executive Officer and/or the Chief Financial Officer of the Issuer notifying the Trustee of such designation. If, at any time, any Unrestricted Subsidiary would fail to meet any of the preceding requirements described in subclauses (A) and (B) of Section 6.01 6.5(a)(iv) above, 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 or made by a Restricted Subsidiary of the Issuer as of such date and, if such Indebtedness, Investments or Liens are not permitted to be Incurred or made as of such date under this Indenture, the Issuer will be in default under this Indenture. For the avoidance of doubt, any Subsidiary of the Issuer shall be a Restricted Subsidiary unless designated as an Unrestricted Subsidiary pursuant to the foregoing. Notwithstanding the foregoing, Curaleaf, Inc., its successors or assigns, in any matter whatsoever, will remain a Restricted Subsidiary hereunder and shall not, under any circumstances, be designated as an Unrestricted Subsidiary.
(c) The Chief Executive Officer and/or the Chief Financial Officer of the Issuer may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that:
(i) such designation will be deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of the Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if such Indebtedness is permitted under the covenant described under Section 6.086.10;
(ii) all outstanding Investments owned by such Unrestricted Subsidiary will be deemed to be made as of the time of such designation and such designation will only be permitted if such Investments would be permitted under the covenant described under Section 6.9, provided that such outstanding Investments shall be valued at the lesser of (A) the Fair Market Value of such Investments measured on the date of such designation and (B) the Fair Market Value of such Investments measured at the time each such Investment was made by such Unrestricted Subsidiary;
(iii) all Liens upon property or assets of such Unrestricted Subsidiary existing at the time of such designation would be permitted under Section 6.6; and
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and would be continuing or would result from in existence following such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.designation.
(d) Upon an Any Unrestricted Subsidiary becoming, or being deemed to become, of the Issuer that has not been designated as a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it the foregoing shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted remain an Unrestricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:qualifications and the designation would not cause a Default.
(i1) (A) such Such Subsidiary does not own any Equity Interest Capital Stock of the Borrower Company (other than Qualified Equity Interests) or any other Restricted Subsidiary that is not a Subsidiary of the Borrower and (B) such Subsidiary does to be so designated or hold any Lien on any property of the Company or any Restricted Subsidiary that is not own any Material Intellectual Property;a Subsidiary of the Subsidiary to be so designated.
(ii2) At the time of the designation, the designation would be permitted under Section 4.05 or as a Permitted Investment.
(3) To the extent the Debt of the Subsidiary is not Non-Recourse Debt, any Guarantee or other credit support thereof by the Borrower Company or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or 4.04 and Section 6.08;4.05.
(iii4) neither Neither the Borrower Company nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or 4.04 and Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower4.05. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bparagraph (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b1) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections paragraph (a)(i), (a)(ii), (a)(iii), (a)(iva) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection paragraph (d).
(2) The Board of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of a Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i1) all existing Indebtedness Investments of the Borrower Company and the Restricted Subsidiaries therein (valued at the Company’s proportional share of the fair market value of its assets less liabilities) will be deemed made at that time;
(2) all existing Capital Stock or Debt of the Company or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, Incurred at that time, and all Liens on property of the Borrower Company or a Restricted Subsidiary of the Borrower securing its obligations held by it will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii3) all existing transactions between it and the Borrower Company or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv4) it will be automatically is released at that time from its Note Guaranty, if any; and
(v5) it will cease to be subject to the provisions of this Agreement the Indenture as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)Subsidiary,
(i1) all of its Indebtedness, Liens Debt and Investments of such Subsidiary Disqualified or Preferred Stock will be deemed incurred Incurred at that time for purposes of Section 6.01 and 4.04, but will not be considered the sale or issuance of Equity Interests for purposes of Section 6.02, as applicable4.10;
(ii2) if it is a Material Domestic Restricted SubsidiaryInvestments therein previously charged under Section 4.05 will be credited thereunder;
(3) to the extent required by Section 4.08, it shall be required to become issue a Guarantor pursuant to Section 5.10Note Guaranty of the Notes; and
(iii4) it will thenceforward be subject to the provisions of this Agreement the Indenture as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors of a Subsidiary as an a Restricted Subsidiary or Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent Trustee by promptly delivering filing with the Trustee a copy of the Board Resolution giving effect to the Administrative Agent a certificate of a Responsible Officer of the Borrower designation and an Officer’s Certificate certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower Parent Guarantor may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of (other than the BorrowerCompany or the Co-issuer), to be an Unrestricted Subsidiary if it meets the following qualifications:qualifications and the designation would not cause a Default.
(i) (A) such Such Subsidiary does not own any Equity Interest Capital Stock of the Borrower Parent Guarantor or any other Restricted Subsidiary of or hold any Debt of, or any Lien on any property of, the Borrower and (B) such Subsidiary does not own Parent Guarantor or any Material Intellectual Property;Restricted Subsidiary.
(ii) At the time of the designation, the designation would be permitted under Section 5.08.
(iii) To the extent the Debt of the Subsidiary is not Non-Recourse Debt, any Guarantee or other credit support thereof by the Borrower Parent Guarantor or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or 5.09 and Section 6.08;5.08.
(iiiiv) neither The Subsidiary is not party to any transaction or arrangement with the Borrower Parent Guarantor or any Restricted Subsidiary that would not be permitted under Section 5.12 after giving effect to the exceptions thereto.
(v) Neither the Parent Guarantor nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results results, except to the extent permitted by Section 6.01 or 5.09 and Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower5.08. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bparagraph (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b1) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections subsection (a)(i), (a)(ii), (a)(iii), (a)(iva) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d).
(2) The Board of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of a Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness Investments of the Borrower Parent Guarantor and the Restricted Subsidiaries therein (valued at the Parent Guarantor’s proportional share of the Fair Market Value of its assets less liabilities) will be deemed made at that time;
(ii) all existing Capital Stock or Debt of the Parent Guarantor or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, Incurred at that time, and all Liens on property of the Borrower Parent Guarantor or a Restricted Subsidiary of the Borrower securing its obligations held by it will be deemed incurred Incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower Parent Guarantor or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will shall be automatically released at that time from its Note Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement hereof as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)Subsidiary,
(i) all of its Indebtedness, Liens Debt and Investments of such Subsidiary Disqualified Stock or Preferred Stock will be deemed incurred Incurred at that time for purposes of Section 6.01 and 5.09 but will not be considered the sale or issuance of Equity Interests for purposes of Section 6.02, as applicable5.07;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall Investments therein previously charged under Section 5.08 will be required to become a Guarantor pursuant to Section 5.10; andcredited thereunder;
(iii) it may be required to issue a Note Guaranty pursuant to Section 5.13; and
(iv) it will thenceforward be subject to the provisions of this Agreement hereof as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower Parent Guarantor of a Subsidiary as an a Restricted Subsidiary or Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent Trustee by promptly delivering filing with the Trustee a copy of the Board Resolution giving effect to the Administrative Agent a certificate of a Responsible Officer of the Borrower designation and an Officers’ Certificate certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: First Supplemental Indenture (Cloud Peak Energy Resources LLC)
Designation of Restricted and Unrestricted Subsidiaries. The Company may at any time designate any Restricted Subsidiary (aas used herein, a “Proposed Re-Designated Subsidiary”) The board of directors (that is not a Borrower or a committee thereof) or chief financial officer of the Borrower may designate any Material Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, to be and has not previously been an Unrestricted Subsidiary if it meets the following qualifications:
as an Unrestricted Subsidiary; in each case, so long as (i) (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
continuing, (vii) no such Proposed Re-Designated Subsidiary may be designated as an Unrestricted Subsidiary if it any of its Subsidiaries is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of (in either case unless such Subsidiaries are also Proposed Re-Designated Subsidiaries being designated as Unrestricted Subsidiaries simultaneously therewith), (iii) immediately after giving effect to such designation the Borrower. Once so designatedCompany and its Restricted Subsidiaries shall be in compliance, the Subsidiary will remain an Unrestricted Subsidiary, subject calculated on a Pro Forma Basis pursuant to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after 1.09, with the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications covenants set forth in subsections (a)(i)Section 7.11, (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guarantysuch Proposed Re-Designated Subsidiary would not constitute a Material Subsidiary as of the end of the period of twelve consecutive months most recently ended, if any; and
and (v) it will cease to be subject prior to the provisions effectiveness of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becomingany such designation, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it the Company shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering deliver to the Administrative Agent a certificate of a Responsible Officer of in form and substance reasonably acceptable to the Borrower certifying that Administrative Agent setting forth in reasonable detail the designation complied calculations demonstrating compliance with the foregoing provisionspreceding clauses (iii) through (vi). Notwithstanding anything in this Agreement or any other Loan Document to the contrary, in no event shall (i) any Subsidiary be designated as an Unrestricted Subsidiary if it, or if any of its Subsidiaries, owns or holds (including by way of an exclusive license or otherwise) any intellectual property or any other assets material to any Borrower’s or Restricted Subsidiary’s business, (ii) (A) any Unrestricted Subsidiary, or any of its Subsidiaries, own or hold (including by way of an exclusive license or otherwise) or (B) the Company or any Restricted Subsidiary transfer (including by way of an exclusive license or otherwise) to any Unrestricted Subsidiary, or any of its Subsidiaries, any material intellectual property or any other assets material to any Borrower’s or Restricted Subsidiary’s business or (iii) the aggregate book value of all assets transferred (including by way of an exclusive license or otherwise) (after giving effect to such transfer) by the Company and its Restricted Subsidiaries from and after the Effective Date to all Unrestricted Subsidiaries and their respective Subsidiaries equal or exceed an amount equal to 5.0% of Consolidated Total Assets at the time of such transfer.
Appears in 1 contract
Samples: Term Loan Agreement (Mastec Inc)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual PropertySubsidiary;
(ii) the Borrower would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate fair market value of all Investments of the Borrower or its Restricted Subsidiaries in such Subsidiary;
(iii) any Guarantee guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iiiiv) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(ivv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(vvi) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Material Indebtedness of the Borrower or a Restricted Subsidiary that includes the concept of the Borrower“unrestricted” subsidiaries. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(iiSection 5.11(a)(i), (a)(iii), ) or (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.125.11(d). The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an a Default or Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,:
(i) all existing Investments of the Borrower and the Restricted Subsidiaries therein (valued at the Borrower’s proportional share of the fair market value of its assets less liabilities) will be deemed made at that time;
(ii) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, incurred at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations held by it will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically is released at that time from its Guaranty, if anythe Loan Documents to which it is a party; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),5.11(b):
(i) all of its Indebtedness, Liens and Investments of such Subsidiary Indebtedness will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable6.01;
(ii) Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10this Agreement to the extent it is not an Excluded Subsidiary; and
(iiiiv) it will thenceforward be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary or a Restricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to filing with the Administrative Agent a copy of the resolutions of the board of directors giving effect to the designation and a certificate of a Responsible Officer an officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Revolving Credit Agreement (SoFi Technologies, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of Subject to Section 10.13(b), the Borrower Company may designate any Subsidiary of the Borrower, including to be a newly acquired or created Restricted Subsidiary of the Borrower, and may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if it meets by giving written notice to each holder of Notes that the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest Board of Directors of the Borrower 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, (1) solely in the case of a Restricted Subsidiary being designated an Unrestricted Subsidiary, such Restricted Subsidiary being designated an Unrestricted Subsidiary shall not have any continuing Investment in the Company or any other Restricted Subsidiary of the Borrower and (B2) such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing (provided that, with respect to Sections 10.1 and 10.2, calculation of compliance therewith shall be made as of the date of determination under this Section 10.13 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 provisions of the first sentence of this Section 10.13, shall not at any time thereafter be redesignated an Unrestricted Subsidiary without the prior written consent of the Required Holders. Any Unrestricted Subsidiary which has been designated a Restricted Subsidiary and which has then been redesignated an Unrestricted Subsidiary, in each case in accordance with the provisions of the first sentence of this Section 10.13, shall not at any time thereafter be redesignated a Restricted Subsidiary without the prior written consent of the Required Holders. If the Company enters into any credit facility or would result from such designation; and
(v) no Subsidiary may note purchase agreement after the date hereof and New Jersey Natural Gas shall be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” under, then the Company shall, within 10 Business Days of its entering into such credit facility or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or note purchase agreement, designate New Jersey Natural Gas as a Restricted Subsidiary of under this Agreement. If the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of Company enters into any Restricted Subsidiary as an Unrestricted Subsidiary credit facility or note purchase agreement after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation Closing and New Jersey Natural Gas shall be subjected to any negative covenants of the type included in this Section 10 of such credit facility or note purchase agreement, then and in any such event the Company shall give written notice thereof to each holder not later than 30 days following the date of execution of any such agreement. Effective on the date of execution of any such agreement, such additional covenant that is included in such agreement and any related definitions shall be deemed to have been incorporated herein. The Company further covenants to promptly execute and deliver at its expense (including, without limitation, the fees and expenses of counsel for the holders) an amount equal amendment to this Agreement in form and substance satisfactory to the fair market value Required Holders evidencing the amendment of the Borrower’s or the applicable Restricted Subsidiary’s Investment thereinthis Agreement to include such additional covenant.
(b) A The Company will cause each Subsidiary previously that is designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists on Schedule 5.4 on the date hereof to at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as times remain a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Shelf Note Purchase Agreement (New Jersey Resources Corp)
Designation of Restricted and Unrestricted Subsidiaries. The Company may at any time designate any Restricted Subsidiary (aas used herein, a “Proposed Re-Designated Subsidiary”) The board of directors (that is not a Borrower or a committee thereof) or chief financial officer of the Borrower may designate any Material Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, to be and has not previously been an Unrestricted Subsidiary if it meets the following qualifications:
as an Unrestricted Subsidiary; in each case, so long as (i) (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
continuing, (vii) no such Proposed Re-Designated Subsidiary may be designated as an Unrestricted Subsidiary if it any of its Subsidiaries is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of (in either case unless such Subsidiaries are also Proposed Re-Designated Subsidiaries being designated as Unrestricted Subsidiaries simultaneously therewith), (iii) immediately after giving effect to such designation the Borrower. Once so designatedCompany and its Restricted Subsidiaries shall be in compliance, the Subsidiary will remain an Unrestricted Subsidiary, subject calculated on a Pro Forma Basis pursuant to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after 1.09, with the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications covenants set forth in subsections (a)(i)Section 7.11, (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guarantysuch Proposed Re-Designated Subsidiary would not constitute a Material Subsidiary as of the end of the period of twelve consecutive months most recently ended, if any; and
and (v) it will cease to be subject prior to the provisions effectiveness of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becomingany such designation, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it the Company shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering deliver to the Administrative Agent a certificate of a Responsible Officer of in form and substance reasonably acceptable to the Borrower certifying that Administrative Agent setting forth in reasonable detail the designation complied calculations demonstrating compliance with the foregoing provisionspreceding clauses (iii) through (vi). Notwithstanding anything in this Agreement or any other Loan Document to the contrary, in no event shall (i) any Subsidiary be designated as an Unrestricted Subsidiary if it, or if any of its Subsidiaries, owns or holds (including by way of an exclusive license or otherwise) any intellectual property or any other assets material to any Borrower’s or Restricted Subsidiary’s business, (ii) (A) any Unrestricted Subsidiary, or any of its Subsidiaries, own or hold (including by way of an exclusive license or otherwise) or (B) the Company or any Restricted Subsidiary transfer (including by way of an exclusive license or otherwise) to any Unrestricted Subsidiary, or any of its Subsidiaries, any material intellectual property or any other assets material to any Borrower’s or Restricted Subsidiary’s business or (iii) the aggregate book value of all assets transferred (including by way of an exclusive license or otherwise) (after giving effect to such transfer) by the Company and its Restricted Subsidiaries from and after the Amendment No. 1 Effective Date to all Unrestricted Subsidiaries and their respective Subsidiaries equal or exceed an amount equal to 5.0% of Consolidated Total Assets at the time of such transfer.
Appears in 1 contract
Samples: Credit Agreement (Mastec Inc)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower may designate any Subsidiary of the Borrower(other than any Subsidiary that is an obligor with respect to any Indebtedness incurred pursuant to Section 7.01(a)(xiii) or 7.01(a)(xiv)), including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualificationssum of (i) the total assets of such Subsidiary (or, if any such Subsidiary itself has Subsidiaries, the consolidated total assets of such Subsidiary and its Consolidated Subsidiaries) and the total assets of every other Unrestricted Subsidiary (other than Cornerstone, the Specified Joint Ventures and the Excluded Partnerships and any Unrestricted Subsidiary that is an Unrestricted Subsidiary pursuant to Section 5.06(f)(A) or Section 5.06(f)(B) (so long as the Borrower is in compliance with the requirements of Section 5.06(f)(ii)), in each case determined as of the date of the Most Recent Financial Statements and (ii) the amount of any Investments made in the Specified Joint Ventures after the Third Amendment and Restatement Date (determined as of the date of such designation in accordance with the definition of “Investment”), does not exceed the greater of $200,000,000 and 5% of the Consolidated Total Assets of the Borrower and its Consolidated Subsidiaries (the “Designation Test”), the designation would not cause a Default and on a Pro Forma Basis, after giving effect to such designation, the Borrower shall be in compliance with the covenants set forth in Article 6 hereof; provided that:
(i) (A) such Subsidiary does not own any Equity Interest capital stock of the Borrower or any other Restricted Subsidiary of the Borrower and Subsidiary;
(Bii) such Subsidiary does not own hold any Material Intellectual PropertyIndebtedness of, or any Lien on any property of, the Borrower or any Restricted Subsidiary, in each case except to the extent permitted by Section 7.01 or 7.02, respectively;
(iiiii) at the time of designation, the designation would be permitted under Section 7.08 and deemed an Investment in an Unrestricted Subsidiary or the assets of an Unrestricted Subsidiary thereunder;
(iv) to the extent the Indebtedness of the Subsidiary is not Non-Recourse Debt, any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08Sections 7.01 and 7.08;
(iiiv) the Subsidiary is not party to any transaction or arrangement with the Borrower or any Restricted Subsidiary that would not be permitted under Section 7.04; and
(vi) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before Sections 7.01 and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein7.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Fourth Amendment and Restatement Agreement (Kindred Healthcare, Inc)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower Management Board may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the either Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual PropertySubsidiary;
(ii) either Borrower would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate Fair Market Value of all Investments of either Borrower or their Restricted Subsidiaries in such Subsidiary;
(iii) any Guarantee guarantee or other credit support thereof by the Borrower Borrowers or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.086.06;
(iiiiv) neither of the Borrower Borrowers nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.086.06;
(ivv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation;
(vi) immediately after giving effect to such designation, Borrower shall be in compliance, on a pro forma basis, with the Financial Covenant for the Test Period then last ended (and, as a condition precedent to the effectiveness of any such designation, Administrative Borrower shall deliver to Administrative Agent a certificate setting forth in reasonable detail the calculations demonstrating such compliance); and
(vvii) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the a Borrower or a Restricted Subsidiary of the BorrowerSubsidiary. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) (i) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(va)(vii) of this Section 5.12 5.13 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d). (ii) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Management Board may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Investments of Borrowers or any of their Restricted Subsidiaries therein (valued at Borrowers’ proportional share of the Fair Market Value of its assets less liabilities) will be deemed made at that time;
(ii) all existing Equity Interest or Indebtedness of the a Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, incurred at that time, and all Liens on property of the a Borrower or a Restricted Subsidiary of the Borrower securing its obligations held by it will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the either Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically is released at that time from the Guaranty and the Pledge and Security Agreement and all related security interests on its Guaranty, if anyproperty shall be released; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b5.13(b),
(i) all of its Indebtedness, Liens Indebtedness and Investments of such Subsidiary Disqualified Equity Interests will be deemed incurred at that time for purposes of Section 6.01 and 6.01, but will not be considered the sale or issuance of Equity Interests for purposes of Section 6.02, as applicable6.08;
(ii) if Investments therein previously charged under Section 6.06 will be credited thereunder;
(iii) it is a Material Domestic Restricted Subsidiary, it shall may be required to become a Guarantor pursuant to Section 5.105.09; and
(iiiiv) it will thenceforward be subject to the provisions of this Agreement as a Restricted Subsidiary; and shall not subsequently be designated as an Unrestricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower Management Board of a Subsidiary as an Unrestricted Subsidiary after the Effective Closing Date will be evidenced to the Administrative Agent by promptly delivering to the filing with Administrative Agent a copy of the resolutions of the Management Board giving effect to the designation and a certificate of a Responsible Officer an officer of the Administrative Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (AVG Technologies N.V.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower Company may designate any Subsidiary of the Borrower, Company (including a any newly acquired or created newly formed Subsidiary of or a Person becoming a Subsidiary through merger, amalgamation, consolidation or other business combination transaction, or Investment therein, but excluding the Borrower, Issuers) to be an Unrestricted Subsidiary if it meets the following qualifications:if: 90
(ia) (A) such the Subsidiary to be so designated does not own any Equity Interest of Capital Stock or Debt of, or own or hold any Lien on any Property of, the Borrower Company or any other Restricted Subsidiary of the Borrower and Subsidiary, (B) such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(ivb) immediately before and immediately after such designation, no Event of Default shall have occurred and be continuing, and (c) any of the following:
(1) the Subsidiary to be so designated has total assets of $1,000 or less, or (2) if the Subsidiary has consolidated assets greater than $1,000, then the designation would be permitted as a Permitted Investment or as a Restricted Payment under Section 4.05. Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the Company will be classified as a Restricted Subsidiary; provided, however, that the Subsidiary shall not be designated a Restricted Subsidiary and shall be automatically classified as an Unrestricted Subsidiary if the Person is a Subsidiary of an Unrestricted Subsidiary. Except as provided in the first sentence of the preceding paragraph and as set forth in clause (a) of the definition of “Unrestricted Subsidiary”, no Restricted Subsidiary may be designated or redesignated as an Unrestricted Subsidiary. The Board of Directors of the Company may designate any Unrestricted Subsidiary to be a Restricted Subsidiary if, immediately after giving effect on a pro forma basis to the designation, (x) the Company could Incur at least $1.00 of additional Debt pursuant to clause (a) of Section 4.04, and (y) no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” therefrom. Any designation or a “guarantor” (or any similar designation) for any other Indebtedness redesignation of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment this kind by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date Company will be evidenced to the Administrative Agent Trustee by promptly delivering to providing the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying Trustee with an Officer’s Certificate that specifies such designation or redesignation and: (a) certifies that the designation complied or redesignation complies with the foregoing provisions, and (b) gives the effective date of the designation or redesignation. Notwithstanding the foregoing, the Company shall ensure that no direct or indirect Permitted Investments in Xxxx Vale Inc. and Xxxx Var Inc. (or any direct or indirect parent company thereof) are used, directly or indirectly, for Restricted Payments to any holder of equity of the Company, including, without limitation, any dividends or distributions (whether made in cash, securities or other Property) declared or paid on or with respect to any shares of Capital Stock of the Company.
Appears in 1 contract
Samples: Indenture (Borr Drilling LTD)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower Company may designate any Subsidiary of the Borrower, including to be a newly acquired or created Restricted Subsidiary of the Borrower, and may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if it meets by giving written notice to each holder of Notes that the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest Board of Directors of the Borrower 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 NEW JERSEY NATURAL GAS COMPANY FIRST AMENDMENT 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 have any continuing Investment in the Company or any other Restricted Subsidiary of the Borrower and (Bb) such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no provided that, after the Release Date until the New Security 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 may be which has been designated as an Unrestricted Subsidiary if it is and which has then been redesignated a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness Restricted Subsidiary, in each case in accordance with the provisions of the Borrower or first sentence of this Section 10.12, shall not at any time thereafter be redesignated an Unrestricted Subsidiary without the prior written consent of the Required Holders. Any Unrestricted Subsidiary which has been designated a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain and which has then been redesignated an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after in each case in accordance with the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value provisions of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) first sentence of this Section 5.12 will 10.12, shall not at any time thereafter be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be redesignated a Restricted Subsidiary if no Event of Default exists at without the time prior written consent of the designation and the designation would not cause an Event of DefaultRequired Holders.
Section 1.13. Sections 11(e) and (cg) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Note Purchase Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required and is hereby amended in its entirety to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement read as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.follows:
Appears in 1 contract
Samples: Note Purchase Agreement (New Jersey Resources Corp)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower Company may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:qualifications and the designation would not cause a Default.
(i) (A) such Such Subsidiary does not own any Equity Interest Capital Stock of the Borrower Company or any other Restricted Subsidiary of or hold any Indebtedness of, or any Lien on any property of, the Borrower and (B) such Subsidiary does not own Company or any Material Intellectual Property;Restricted Subsidiary.
(ii) At the time of the designation, the designation would be permitted under Section 4.08.
(iii) To the extent the Indebtedness of the Subsidiary is not Non-Recourse Indebtedness, any Guarantee or other credit support thereof by the Borrower Company or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or 4.06 and Section 6.08;4.08.
(iiiiv) neither The Subsidiary is not party to any transaction or arrangement with the Borrower Company or any Restricted Subsidiary that would not be permitted under Section 4.10 after giving effect to the exceptions thereto.
(v) Neither the Company nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results results, except to the extent permitted by Section 6.01 or 4.06 and Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower4.08. Once so designated, designated the Subsidiary will remain an Unrestricted Subsidiary, subject to clause (b) of this Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein4.14.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections clause (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(va) of this Section 5.12 4.14 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection clause (d) of this Section 5.12. 4.14.
(i) The board Board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of a Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Investments of the Company and the Restricted Subsidiaries therein (valued at the Company’s proportional share of the Fair Market Value of its assets less liabilities) will be deemed made at that time;
(ii) all existing Capital Stock or Indebtedness of the Borrower Company or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, Incurred at that time, and all Liens on property of the Borrower Company or a Restricted Subsidiary of the Borrower securing its obligations held by it will be deemed incurred Incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower Company or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will shall be automatically released at that time from its GuarantyNote Guarantee, if any; and
(v) it will cease to be subject to the provisions of this Agreement the Indenture as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)Subsidiary,
(i) all of its Indebtedness, Liens Indebtedness and Investments of such Subsidiary Disqualified Stock or Preferred Stock will be deemed incurred Incurred at that time for purposes of Section 6.01 and 4.06, but will not be considered the sale or issuance of Equity Interests for purposes of Section 6.02, as applicable4.09;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall Investments therein previously charged under Section 4.08 will be required to become a Guarantor pursuant to Section 5.10; andcredited thereunder;
(iii) it may be required to issue a Note Guarantee pursuant to Section 4.12; and
(iv) it will thenceforward be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower Company of a Subsidiary as an a Restricted Subsidiary or Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent Trustee by promptly delivering filing with the Trustee a copy of the Board Resolution giving effect to the Administrative Agent a certificate of a Responsible Officer of the Borrower designation and an Officers’ Certificate certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower may designate any Subsidiary of the BorrowerSubsidiary, including a newly acquired or created Subsidiary of the BorrowerSubsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual PropertySubsidiary;
(ii) any Guarantee or other credit support thereof of Indebtedness of such Subsidiary by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.086.01;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and immediately after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and;
(viv) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of Subsidiary; and
(v) after giving effect to such designation on a pro forma basis, (1) Consolidated Adjusted EBITDA for the Borrowermost recent Measurement Period is a positive number and (2) the Total Net Leverage Ratio does not exceed 3.00 to 1.00. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i5.10(a)(i), (a)(ii), (a)(iii), (a)(iv5.10(a)(ii) or (a)(v5.10(a)(iv) of this Section 5.12 5.10 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12). The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an a Default or Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,:
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, incurred at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations held by it will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iviii) it will be automatically is released at that time from its Guaranty, if anythe Loan Documents to which it is a party; and
(viv) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),5.10(b):
(i) all of its Indebtedness, Liens and Investments of such Subsidiary Indebtedness will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable6.01;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to this Agreement in accordance with Section 5.105.09; and
(iii) it will thenceforward be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary or a Restricted Subsidiary after the Effective Date will be evidenced notified to the Administrative Agent by promptly delivering to providing the Administrative Agent a copy a certificate of a Responsible Officer an officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors may designate any Subsidiary of the Borrower, Company (including a any newly acquired or created Subsidiary of the Borrower, newly formed Subsidiary) to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) unless such Subsidiary does not own or any Equity Interest of its Subsidiaries owns any Capital Stock or Indebtedness of, or holds any Lien on any property of, the Borrower Company or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does Company that is not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted a Subsidiary of the Borrower is Subsidiary to be so designated; provided, however, that either
(1) the Subsidiary to be so designated has total assets of $1,000 or less or
(2) if such Subsidiary has assets greater than $1,000, such designation would be permitted under Section 6.01 or Section 6.08;4.07.
(iiib) neither the Borrower nor The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Borrower has any obligation Subsidiary; provided, however, that immediately after giving effect to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;designation
(iv1) immediately before and after such designation, the Company could Incur $1.00 of additional Indebtedness under Section 4.06(a) (irrespective of whether that covenant remains in effect); and
(2) no Default or Event of Default shall have occurred and be continuing or would result from continuing. Any such designation; and
(v) no Subsidiary may designation by the Board of Directors shall be designated as an Unrestricted Subsidiary if it is evidenced to the Trustee by promptly filing with the Trustee a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness copy of the Borrower or a Restricted Subsidiary resolution of the Borrower. Once so designated, Board of Directors giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment thereinforegoing provisions.
(b1) A Subsidiary previously designated as an Unrestricted Subsidiary which at any time fails to meet the qualifications set forth in subsections paragraph (a)(i), (a)(ii), (a)(iii), (a)(iva) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection paragraph (de).
(2) The Board of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause a Default. Once so designated the Subsidiary will remain an Event of DefaultUnrestricted Subsidiary, subject to paragraph (d).
(cd) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i1) all existing Indebtedness Investments of the Borrower or a Company and the Restricted Subsidiary Subsidiaries therein (valued at the Company’s proportional share of the Borrower held by it fair market value of its assets less liabilities) will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred made at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii2) all existing transactions between it and the Borrower Company or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv3) it will be automatically is released at that time from its Guaranty, if any; and
(v4) it will cease to be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary.
(de) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b)Subsidiary,
(i1) all of its Indebtedness, Liens Indebtedness and Investments of such Subsidiary Disqualified Stock or Preferred Stock will be deemed incurred Incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable4.06;
(ii2) if Investments therein previously charged under Section 4.07 will be credited thereunder;
(3) it is a Material Domestic Restricted Subsidiary, it shall may be required to become issue a Guarantor Guaranty Agreement of the Notes pursuant to Section 5.104.11; and
(iii4) it will thenceforward be subject to the provisions of this Agreement Indenture as a Restricted Subsidiary.
(ef) Any designation by the board Board of directors (or a committee thereof) or chief financial officer of the Borrower Directors of a Subsidiary as an a Restricted Subsidiary or Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent Trustee by promptly delivering filing with the Trustee a copy of the Board Resolution giving effect to the Administrative Agent a certificate of a Responsible Officer of the Borrower designation and an Officer’s Certificate certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) Directors or chief financial officer of the Borrower Parent may designate any Subsidiary of the Parent (other than, after the consummation of a Holdco Transaction, the Borrower), including a newly acquired or created Subsidiary of the BorrowerParent, to be an Unrestricted Subsidiary if it meets the following qualifications:
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower Parent or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual PropertyParent;
(ii) Parent would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate fair market value (as determined by the Borrower in good faith) of all Investments of Parent or its Restricted Subsidiaries in such Subsidiary (valued at Parent’s and its Restricted Subsidiaries’ proportional share of the fair market value (as determined by the Borrower in good faith) of such Subsidiary’s assets less liabilities);
(iii) any Guarantee or other credit support thereof by the Borrower Parent or any Restricted Subsidiary of the Borrower Parent is permitted under Section 6.01 6.1 or Section 6.086.7;
(iiiiv) neither the Borrower Parent nor any Restricted Subsidiary of the Borrower Parent has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 6.1 or Section 6.086.7;
(ivv) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result from such designation; and
(vvi) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower Parent or a Restricted Subsidiary of the BorrowerParent. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bsubsection (b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) (i) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(va)(vi) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Pinterest, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board of directors (or a committee thereof) or chief financial officer of the Borrower may designate Designate any Restricted Subsidiary of the Borrower, including a newly acquired or created Subsidiary of the Borrower, to be an Unrestricted Subsidiary only if it meets the following qualifications:(and any other attempted designation shall be null and void):
(i) (A) such Subsidiary does not own any Equity Interest of the Borrower or any other Restricted Subsidiary could make the Investment which is deemed to occur upon such designation in accordance with Section 6.05 equal to the appropriate Fair Market Value of all outstanding Investments owned by the Borrower and (B) the Restricted Subsidiaries in such Subsidiary does not own any Material Intellectual Propertyat the time of such designation;
(ii) any Guarantee or other credit support thereof by the Borrower or any such Restricted Subsidiary meets the definition of the Borrower is permitted under Section 6.01 or Section 6.08an “Unrestricted Subsidiary”;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition designation would not constitute or cause it to achieve specified levels (with or without the passage of operating results except to the extent permitted by Section 6.01 time) a Default or Section 6.08;
(iv) immediately before and after such designation, Event of Default or no Default or Event of Default shall have occurred and would be continuing or would result from in existence following such designation; and;
(viv) no the Borrower delivers to the Administrative Agent a certified copy of a resolution of the Board of Directors of the Borrower giving effect to such designation and a Responsible Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 6.06. In connection with the occurrence of a Contract Unwind Trigger, the Borrower may cause an applicable Restricted Subsidiary may to be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” meets the conditions set forth in this clause (a) of Section 5.16, in each case, as soon as practicable thereafter but not later than 20 Business Days or a “guarantor” (or any similar designation) as soon as practicable thereafter where applicable local law requires additional time for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the compliance with applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment thereinlegal requirements.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Designate any Unrestricted Subsidiary to be a Restricted Subsidiary only if no Event of Default exists at the time of the (and any other attempted designation shall be null and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,void):
(i) all existing Indebtedness the Borrower and the Restricted Subsidiaries could incur the Debt which is deemed to be incurred upon such designation under Section 6.02, equal to the total Debt of such Subsidiary calculated on a pro forma basis as if such designation had occurred on the first day of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that timefour-quarter reference period;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower designation would not constitute or any Restricted Subsidiary cause a Default or Event of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10Default; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering delivers to the Administrative Agent a certificate certified copy of a Responsible Officer resolution of the Board of Directors of the Borrower giving effect to such designation and an Officers’ Certificate certifying that the such designation complied with the foregoing provisionspreceding conditions, including the incurrence of Debt under Section 6.02. Upon the occurrence of a Contract Winning Trigger, the Borrower shall be required to designate each applicable Subsidiary as a Restricted Subsidiary and a Guarantor and pledge its assets and property as Collateral pursuant to Section 5.12, and shall be required to comply with the conditions set forth in this clause (b) in connection therewith.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Issuer, by delivery of directors (or a committee thereof) or chief financial officer of an Officer’s Certificate to the Borrower Trustee, may designate any Restricted Subsidiary to be an “Unrestricted Subsidiary,” in which event such Subsidiary and each other Person that is then or thereafter becomes a Subsidiary of the Borrower, including a newly acquired or created such Subsidiary of the Borrower, will be deemed to be an Unrestricted Subsidiary, if: (1) at the time of designation, either (a) the Subsidiary if it meets to be so designated has total consolidated assets of $10,000 or less or (b) the following qualifications:
(i) (A) Issuer could make a Restricted Payment or Permitted Investment in such Subsidiary does not own any Equity Interest of pursuant to Section 4.7; (2) all the Borrower or any other Restricted Subsidiary of the Borrower and (B) such Subsidiary does not own any Material Intellectual Property;
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests Debt of such Subsidiary or to maintain or preserve and its financial condition or cause it to achieve specified levels Subsidiaries shall, at the date of operating results except to the extent permitted by Section 6.01 or Section 6.08;
designation and at all times thereafter, consist of Non-Recourse Debt; (iv3) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing at the time of, or would result from immediately after giving effect to, such designation; and
(v4) no each Subsidiary may of such Subsidiary has been, or concurrently therewith will be, designated as an Unrestricted Subsidiary; and (5) such Subsidiary shall substantially simultaneously be designated as an “Unrestricted Subsidiary if it is a “restricted subsidiarySubsidiary” or a “guarantor” under the Senior Credit Agreement (or any similar designation) for and, to the extent applicable, any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(bagreement governing Permitted Refinancing Debt in respect thereof). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Issuer in such Subsidiary therein at on the date of designation in an amount equal to the fair market value Fair Market Value of the Borrower’s or the applicable Restricted SubsidiaryIssuer’s Investment therein.
(b) A Subsidiary previously designated as an The Issuer may designate any Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be as a Restricted Subsidiary only if: (1)(x) the Issuer would be able to Incur at least $1.00 of additional Debt pursuant to Section 4.9(a), or (y) the Fixed Charge Coverage Ratio of the Issuer would not be less than the Fixed Charge Coverage Ratio of the Issuer immediately prior to such designation, in each case on a pro forma basis taking into account such designation; (2) all Liens of such Unrestricted Subsidiary outstanding immediately following such designation would, if Incurred at such time, have been permitted to be Incurred for all purposes of this Indenture; (3) no Event of Default exists shall have occurred and be continuing at the time of, or immediately after giving effect to, such designation; and (4) such Subsidiary shall substantially simultaneously be designated as a “Restricted Subsidiary” under the Senior Credit Agreement (and, to the extent applicable, any other agreement governing Permitted Refinancing Debt in respect thereof). The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the Incurrence at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower any Investment, Debt or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred existing at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiarysuch time.
(e) Any designation by the board of directors (or a committee thereof) or chief financial officer of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Samples: Indenture (PROG Holdings, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The board Board of directors (or a committee thereof) or chief financial officer Directors of the Borrower Issuer may designate any Subsidiary of the Borrower, Issuer (including a any existing Subsidiary and any newly acquired or created newly formed Subsidiary of the Borrower, Issuer) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on any property of, the Issuer or any other Subsidiary of the Issuer that is not a Subsidiary of the Subsidiary to be so designated; provided, however, that the Subsidiary to be so designated and its Subsidiaries do not at the time of designation have any Indebtedness pursuant to which the lender has recourse to any of the assets of the Issuer or any of its Restricted Subsidiaries; provided, further, however, that either:
(i) the Subsidiary to be so designated has total consolidated assets of $1,000 or less; or
(ii) if it meets such Subsidiary has consolidated assets greater than $1,000, then such designation would be permitted under Section 3.4.
(b) The Board of Directors of the following qualificationsIssuer may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that immediately after giving effect to such designation:
(i) (A) such Subsidiary does not own any Equity the Issuer could Incur $1.00 of additional Indebtedness pursuant to the Interest of the Borrower Coverage Ratio test described under Section 3.3 or any other Restricted Subsidiary of the Borrower and (B) the Interest Coverage Ratio for the Issuer and its Restricted Subsidiaries would be equal to or greater than such Subsidiary does not own any Material Intellectual Property;ratio for the Issuer and its Restricted Subsidiaries immediately prior to such designation, in each case on a pro forma basis taking into account such designation, and
(ii) any Guarantee or other credit support thereof by the Borrower or any Restricted Subsidiary of the Borrower is permitted under Section 6.01 or Section 6.08;
(iii) neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.01 or Section 6.08;
(iv) immediately before and after such designation, no Default or Event of Default shall will have occurred and be continuing or would result from such designation; and
(v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to Section 5.12(b). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of the Borrower’s or the applicable Restricted Subsidiary’s Investment therein.
(b) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 5.12 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of this Section 5.12. The board of directors (or a committee thereof) or the chief financial officer of the Borrower may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Defaultcontinuing.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(i) all existing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower held by it will be deemed issued or incurred, as applicable, at that time, and all Liens on property of the Borrower or a Restricted Subsidiary of the Borrower securing its obligations will be deemed incurred at that time;
(ii) all Investments therein previously charged under Section 6.08 will be credited thereunder;
(iii) all existing transactions between it and the Borrower or any Restricted Subsidiary of the Borrower (including Investments of the Borrower or any Restricted Subsidiary in such Subsidiary) will be deemed entered into at that time;
(iv) it will be automatically released at that time from its Guaranty, if any; and
(v) it will cease to be subject to the provisions of this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.12(b),
(i) all of its Indebtedness, Liens and Investments of such Subsidiary will be deemed incurred at that time for purposes of Section 6.01 and Section 6.02, as applicable;
(ii) if it is a Material Domestic Restricted Subsidiary, it shall be required to become a Guarantor pursuant to Section 5.10; and
(iii) it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the board Board of directors (or a committee thereof) or chief financial officer Directors of the Borrower of a Subsidiary as an Unrestricted Subsidiary after the Effective Date Issuer pursuant to Section 3.13(b) will be evidenced to the Administrative Agent Trustee by promptly delivering to filing with the Administrative Agent Trustee a certificate of a Responsible Officer copy of the Borrower resolution of the Board of Directors of the Issuer giving effect to such designation and an Officer’s Certificate certifying that the such designation complied with the foregoing provisionsthis Section 3.13.
Appears in 1 contract
Samples: Indenture (Leslie's, Inc.)
