Common use of Designation of Unrestricted Subsidiaries Clause in Contracts

Designation of Unrestricted Subsidiaries. The Board of Directors may designate any Subsidiary (including any Restricted Subsidiary or any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary so long as: (i) neither the Company nor any Restricted Subsidiary is directly or indirectly liable for any Indebtedness of such Subsidiary; (ii) no default with respect to any Indebtedness of such Subsidiary would permit (upon notice, lapse of time or otherwise) any holder of any other Indebtedness of the Company or any Restricted Subsidiary to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; (iii) any Investment in such Subsidiary deemed to be made as a result of designating such Subsidiary an Unrestricted Subsidiary will not violate the provisions of Section 4.07 hereof; (iv) neither the Company nor any Restricted Subsidiary has a contract, agreement, arrangement, understanding or obligation of any kind, whether written or oral, with such Subsidiary other than (A) those that might be obtained at the time from Persons who are not Affiliates of the Company or (B) administrative, tax sharing and other ordinary course contracts, agreements, arrangements and understandings or obligations entered into in the ordinary course of business; and (v) neither the Company nor any Restricted Subsidiary has any obligation to subscribe for additional shares of Capital Stock or other Equity Interests in such Subsidiary, or to maintain or preserve such Subsidiary's financial condition or to cause such Subsidiary to achieve certain levels of operating results, other than as permitted under Section 4.07 hereof. Notwithstanding the foregoing, the Company may not designate as an Unrestricted Subsidiary any Subsidiary which, on the date of this Indenture, is a Significant Subsidiary, and may not sell, transfer or otherwise dispose of any properties or assets of any such Significant Subsidiary to an Unrestricted Subsidiary, other than in the ordinary course of business. The Board of Directors may designate any Unrestricted Subsidiary as a Restricted Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if (i) such Indebtedness is permitted under Section 4.09 hereof and (ii) no Default or Event of Default would occur as a result of such designation.

Designation of Unrestricted Subsidiaries. (a) The Board of Directors of the Company may designate any Subsidiary (including any Restricted Subsidiary or any newly acquired or newly formed Subsidiary) that does not directly, indirectly or beneficially own any Capital Stock of, or Subordinated Indebtedness of, or own or hold any Lien on any property of, the Company or any other Subsidiary of the Company, to be an Unrestricted Subsidiary so long asas (a) such Subsidiary at the time of such designation: (i) neither has no Indebtedness other than Non-Recourse Indebtedness; provided, that the Company nor any Restricted or a Subsidiary is directly or indirectly liable for any of the Company may guarantee Indebtedness of an Unrestricted Subsidiary so long as any such Subsidiaryguarantee constitutes an Investment made pursuant to clause (f) of the definition of Permitted Investment; (ii) no default with respect is not party to any Indebtedness of such Subsidiary would permit (upon noticeagreement, lapse of time contract, arrangement or otherwise) any holder of any other Indebtedness of understanding with the Company or any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to declare a default on such other Indebtedness the Company or cause the payment thereof to be accelerated or payable prior to its stated maturity; (iii) any Investment in such Subsidiary deemed to be made as a result of designating such Subsidiary an Unrestricted Subsidiary will not violate the provisions of Section 4.07 hereof; (iv) neither the Company nor any Restricted Subsidiary has a contract, agreement, arrangement, understanding or obligation of any kind, whether written or oral, with such Subsidiary other than (A) those that might be obtained at the time from Persons who are not Affiliates of the Company or Company; (Biii) administrative, tax sharing and other ordinary course contracts, agreements, arrangements and understandings or obligations entered into in the ordinary course of business; and (v) is a Person with respect to which neither the Company nor any Restricted Subsidiary of its Subsidiaries has any direct or indirect obligation (x) to subscribe for additional shares Equity Interests, except to the extent that any such Investment made for such purpose constitutes an Investment made pursuant to clause (f) of Capital Stock or other Equity Interests in such Subsidiarythe definition of Permitted Investment, or (y) to maintain or preserve such SubsidiaryPerson's financial condition or to cause such Subsidiary Person to achieve certain any specified levels of operating results, other than as permitted under Section 4.07 hereof. Notwithstanding the foregoing, ; and (iv) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company may not designate as or any of its Subsidiaries; and (b) each Subsidiary of such Subsidiary shall also be designated an Unrestricted Subsidiary any Subsidiary which, on the date of this Indenture, is a Significant Subsidiary, and may not sell, transfer or otherwise dispose of any properties or assets of any such Significant Subsidiary to an Unrestricted Subsidiary, other than in the ordinary course of business. The Board of Directors may designate any Unrestricted Subsidiary as a Restricted Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if shall comply with clause (ia) such Indebtedness is permitted under Section 4.09 hereof and (ii) no Default or Event of Default would occur as a result of such designationabove.

Designation of Unrestricted Subsidiaries. (a) The Board of Directors Company may designate any a Subsidiary (including a newly formed or newly acquired Subsidiary) of the Company or any of its Restricted Subsidiaries as an Unrestricted Subsidiary if such Subsidiary (a "Designation") if (i) no Default shall have occurred and be continuing at the time of or after giving effect to such Designation, (ii) (A) such Subsidiary has total assets of $1,000 or less or (B) such Subsidiary has total assets of more than $1,000 and an Investment in such Subsidiary in an amount equal to the fair market value of such Subsidiary (the "Designation Amount") would then be permitted under Section 5.01(a) hereof and (iii) the Company would be permitted to incur $1.00 of additional Debt (other than Permitted Indebtedness) pursuant to Section 5.02 at the time of and after giving effect to such Designation. Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the Company or any of its Restricted Subsidiaries shall be classified as a Restricted Subsidiary thereof. In the event of any such Designation in accordance with this Section 6.01(a), the Company shall be deemed to have made an Investment constituting a Restricted Payment pursuant to Section 5.01 for all purposes of the Indenture in the Designation Amount. (b) The Company shall not, and shall not permit any Restricted Subsidiary to, at any time (x) provide direct or indirect credit support for or a guarantee of any newly acquired or newly formed Subsidiary) to be an Debt of any Unrestricted Subsidiary so long as: (iincluding of any undertaking, agreement or instrument evidencing such Debt), (y) neither the Company nor any Restricted Subsidiary is be directly or indirectly liable for any Indebtedness Debt of such Subsidiary; any Unrestricted Subsidiary or (iiz) no default with respect to be directly or indirectly liable for any Indebtedness of such Subsidiary would permit Debt which provides that the holder thereof may (upon notice, lapse of time or otherwiseboth) any holder of any other Indebtedness of the Company or any Restricted Subsidiary to declare a default on such other Indebtedness thereon or cause the payment thereof to be accelerated or payable prior to its stated maturity; (iii) final scheduled maturity upon the occurrence of a default with respect to any Investment in such Subsidiary deemed to be made as a result Debt of designating such Subsidiary an Unrestricted Subsidiary will not violate the provisions of Section 4.07 hereof; (iv) neither the Company nor any Restricted Subsidiary has a contract, agreement, arrangement, understanding or obligation of any kind, whether written or oral, with such Subsidiary other than (A) those that might be obtained at the time from Persons who are not Affiliates of the Company or (B) administrative, tax sharing and other ordinary course contracts, agreements, arrangements and understandings or obligations entered into in the ordinary course of business; and (v) neither the Company nor any Restricted Subsidiary has any obligation to subscribe for additional shares of Capital Stock or other Equity Interests in such Subsidiary, or to maintain or preserve such Subsidiary's financial condition or to cause such Subsidiary to achieve certain levels of operating results, other than as permitted under Section 4.07 hereof. Notwithstanding the foregoing, the Company may not designate as an Unrestricted Subsidiary any Subsidiary which, on the date of this Indenture, is a Significant Subsidiary, and may not sell, transfer or otherwise dispose of any properties or assets of any such Significant Subsidiary to an Unrestricted Subsidiary, other than in the ordinary course of business. The Board of Directors may designate any Unrestricted Subsidiary as a Restricted Subsidiary; provided that such designation will be deemed (including any right to be an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of take enforcement action against such Unrestricted Subsidiary and such designation will only be permitted if Subsidiary), except, in the case of clause (ix) such Indebtedness is or (y), to the extent permitted under Section 4.09 hereof Sections 5.01, 5.02 and (ii) no Default or Event of Default would occur as a result of such designation5.03. SECTION 6.02.

Designation of Unrestricted Subsidiaries. The Board of Directors of Holdings may designate any Subsidiary that is not a Loan Party (including any Restricted Subsidiary or any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary so long as: if (ia) neither the Company nor such Subsidiary does not own any Restricted Equity Interests of, and does not own or hold any Lien on any property of, any Loan Party, (b) such Subsidiary does not own or lease any Network Infrastructure, (c) such Subsidiary is directly or indirectly liable for any Indebtedness of such Subsidiary; (ii) no default with respect not party to any Indebtedness of such Subsidiary would permit (upon noticematerial agreement, lapse of time contract, arrangement or otherwise) any holder of any other Indebtedness of the Company understanding with Holdings or any Restricted Subsidiary unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to declare a default on Holdings or such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; (iii) any Investment in such Subsidiary deemed to be made as a result of designating such Subsidiary an Unrestricted Subsidiary will not violate the provisions of Section 4.07 hereof; (iv) neither the Company nor any Restricted Subsidiary has a contract, agreement, arrangement, understanding or obligation of any kind, whether written or oral, with such Subsidiary other than (A) those that might be obtained at the time from in an arm's-length transaction with Persons who are not Affiliates of the Company or Holdings, (B) administrative, tax sharing and other ordinary course contracts, agreements, arrangements and understandings or obligations entered into in the ordinary course of business; and (vd) neither the Company Holdings nor any Restricted Subsidiary has any direct or indirect obligation to subscribe for additional shares of Capital Stock or other Equity Interests in such Subsidiary, Subsidiary or to maintain or preserve such Subsidiary's financial condition or to cause such Subsidiary to achieve certain any specified levels of operating results, (e) such Subsidiary has at least one director on its board of directors that is not a director or executive officer of Holdings or any Restricted Subsidiary and at least one executive officer that is not a director or executive officer of Holdings or any Restricted Subsidiary, (f) such Subsidiary does not hold any Concession or other than as permitted Governmental Approval relating to the Project, (g) no Loan Party has Guaranteed any 107 Indebtedness of such Subsidiary outstanding at the time of such designation, (h) such Subsidiary does not have any Indebtedness outstanding if the occurrence of a default thereunder, after the giving of notice, lapse of time or otherwise, or the exercise of remedies with respect thereto would result in a default under Section 4.07 hereof. Notwithstanding any Indebtedness of any Loan Party or otherwise permit, after the foregoinggiving of notice, lapse of time or otherwise, any holder of any Indebtedness of any Loan Party to accelerate the maturity of such Indebtedness and (i) after giving effect to such designation Holdings, the Company may not designate as Borrower and the Restricted Subsidiaries will be in compliance with the provisions of Section 6.04. For the purposes of determining compliance with clause (i) of the previous sentence, all investments made by Holdings or any Restricted Subsidiary in a Subsidiary on or prior to the date that such Subsidiary is designated an Unrestricted Subsidiary any Subsidiary which, shall be deemed to be made on the date of this Indenture, is a Significant Subsidiary, and may not sell, transfer or otherwise dispose of any properties or assets of any such Significant Subsidiary to an Unrestricted Subsidiary, other than in the ordinary course of businessdesignation. The Board of Directors of Holdings may designate any Unrestricted Subsidiary as to be a Restricted Subsidiary; provided that (a) Holdings is in compliance on a pro forma basis after giving effect to such designation, with the covenants contained in Sections 6.15 through 6.24 recomputed as at the last day of the most recently ended fiscal quarter of Holdings for which financial statements are available, as if such designation will had occurred on the first day of each relevant period for testing such compliance and (b) immediately after giving effect to such designation, no Default shall have occurred and be deemed continuing. Any designation permitted under this Section shall be evidenced to be an incurrence the Agents by delivering to each of Indebtedness by them a Restricted Subsidiary certified copy of any outstanding Indebtedness the resolution of such Unrestricted Subsidiary and the Board of Directors of Holdings giving effect to such designation will only be permitted if (i) and a certificate of a Financial Officer certifying that such Indebtedness is permitted under Section 4.09 hereof and (ii) no Default or Event of Default would occur as a result of such designationdesignation complies with the foregoing conditions.

Designation of Unrestricted Subsidiaries. The Board of Directors may designate any Subsidiary (including any Restricted Subsidiary or any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary so long as: (i) neither the Company nor any Restricted Subsidiary is directly or indirectly liable for any Indebtedness of such Subsidiary; (ii) no default with respect to any Indebtedness of such Subsidiary would permit (upon notice, lapse of time or otherwise) any holder of any other Indebtedness of the Company or any Restricted Subsidiary to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; (iii) any Investment in such Subsidiary deemed to be made as a result of designating such Subsidiary an Unrestricted Subsidiary will not violate the provisions of Section 4.07 hereof; (iv) neither the Company nor any Restricted Subsidiary has a contract, agreement, arrangement, understanding or obligation of any kind, whether written or oral, with such Subsidiary other than (A) those that might be obtained at the time from Persons who are not Affiliates of the Company or (B) administrative, tax sharing and other ordinary course contracts, agreements, arrangements and understandings or obligations entered into in the ordinary course of business; and (v) neither the Company nor any Restricted Subsidiary has any obligation to subscribe for additional shares of Capital Stock or other Equity Interests in such Subsidiary, or to maintain or preserve such Subsidiary's financial condition or to cause such Subsidiary to achieve certain levels of operating results, other than as permitted under Section 4.07 hereof. Notwithstanding the foregoing, the Company may not designate as an Unrestricted Subsidiary any Subsidiary which, on the date of this Indenture, is a Significant Subsidiary, and may not sell, transfer or otherwise dispose of any properties or assets of any such Significant Subsidiary to an Unrestricted Subsidiary, other than in the ordinary course of business, in each case, other than Iron Mountain Global, Inc. and its Subsidiaries (including, without limitation, Britannia Data Management Limited and its Subsidiaries). The Board of Directors may designate any Unrestricted Subsidiary as a Restricted Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if (i) such Indebtedness is permitted under Section 4.09 hereof and (ii) no Default or Event of Default would occur as a result of such designation.

Designation of Unrestricted Subsidiaries. The Board Borrower’s board of Directors may directors may, at any time, designate any Subsidiary (including any Restricted Subsidiary or any newly that is acquired or newly formed Subsidiary) to be created after the Closing Date as an Unrestricted Subsidiary by prior written notice to the Administrative Agent; provided that the Borrower shall only be permitted to so designate a new Unrestricted Subsidiary after the Closing Date and so long as: as (i) neither the Company nor any Restricted Subsidiary is directly or indirectly liable for any Indebtedness of such Subsidiary; (iia) no default with respect to any Indebtedness Default or Event of Default exists or would result therefrom, (b) such Subsidiary would permit (upon noticedoes not own any capital stock or Indebtedness of, lapse of time or otherwise) own or hold a Lien on any holder of property of, the Borrower or any other Indebtedness Subsidiary that is not a subsidiary of the Company Subsidiary to be so designated and (c) such Unrestricted Subsidiary shall be capitalized (to the extent capitalized by the Borrower or any Restricted of its Subsidiaries) through Investments permitted by, and in compliance with, Section 6.04(k), (o) or (r), with any assets owned by such Unrestricted Subsidiary to declare a default on such other Indebtedness or cause at the payment time of the initial designation thereof to be accelerated treated as Investments pursuant to Section 6.04(k), (o) or payable prior to its stated maturity(r); (iii) any Investment in such Subsidiary deemed to be made as a result of designating such Subsidiary an Unrestricted Subsidiary will not violate the provisions of Section 4.07 hereof; (iv) neither the Company nor any Restricted Subsidiary has a contract, agreement, arrangement, understanding or obligation of any kind, whether written or oral, with such Subsidiary other than (A) those provided that might be obtained at the time from Persons who are not Affiliates of the Company initial Investment by the Borrower or (B) administrative, tax sharing and other ordinary course contracts, agreements, arrangements and understandings or obligations entered into in the ordinary course any of business; and (v) neither the Company nor any Restricted Subsidiary has any obligation to subscribe for additional shares of Capital Stock or other Equity Interests its Subsidiaries in such Subsidiary, or to maintain or preserve the Borrower shall designate such Subsidiary's financial condition or to cause such Subsidiary to achieve certain levels of operating results, other than as permitted under Section 4.07 hereof. Notwithstanding the foregoing, the Company may not designate entity as an Unrestricted Subsidiary any Subsidiary which, on in a written notice to the date of this Indenture, is a Significant Subsidiary, and may not sell, transfer or otherwise dispose of any properties or assets of any such Significant Subsidiary to an Unrestricted Subsidiary, other than in the ordinary course of businessAdministrative Agent. The Board of Directors Borrower may designate any Unrestricted Subsidiary as to be a Restricted SubsidiarySubsidiary for purposes of this Agreement (each, a “Subsidiary Redesignation”); provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if (i) such Indebtedness is permitted under Section 4.09 hereof Unrestricted Subsidiary, both before and after giving effect to such designation, shall be a wholly owned Subsidiary of the Borrower, (ii) no Default or Event of Default then exists or would occur as a result consequence of any such Subsidiary Redesignation, (iii) calculations are made by the Borrower of Pro Forma Compliance with the Financial Covenants for the relevant period, as if the respective Subsidiary Redesignation (as well as all other Subsidiary Redesignations theretofore consummated after the first day of such designationperiod) had occurred on the first day of such period, and such calculations shall show that such Financial Covenants would have been complied with if the Subsidiary Redesignation had occurred on the first day of such period (for this purpose, if the first day of the respective period occurs prior to the Closing Date, calculated as if the Financial Covenants had been applicable from the first day of such period), (iv) based on good faith projections prepared by the Borrower for the period from the date of the respective Subsidiary Redesignation to the date that is one year LifeCare Credit Agreement thereafter, the level of financial performance measured by the Financial Covenants shall be better than or equal to such level as would be required to provide that no Default or Event of Default would exist under the Financial Covenants through the date that is one year from the date of the respective Subsidiary Redesignation, (v) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Subsidiary Redesignation (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (vi) the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by a Financial Officer, certifying to the best of such officer’s knowledge, compliance with the requirements of preceding clauses (i) through (v), inclusive, and containing the calculations required by the preceding clauses (iii) and (iv), and (vii) any Unrestricted Subsidiary subject to a Subsidiary Redesignation may not thereafter be designated as an Unrestricted Subsidiary.

Designation of Unrestricted Subsidiaries. The Board Borrower’s board of Directors may directors may, at any time, designate any Subsidiary (including any Restricted Subsidiary or any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary so long as: (i) neither the Company nor any Restricted Subsidiary is directly or indirectly liable for any Indebtedness of such Subsidiary; (ii) no default with respect to any Indebtedness of such Subsidiary would permit (upon notice, lapse of time or otherwise) any holder of any other Indebtedness of the Company or any Restricted Subsidiary to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; (iii) any Investment in such Subsidiary deemed to be made as a result of designating such Subsidiary an Unrestricted Subsidiary will not violate the provisions of Section 4.07 hereof; (iv) neither the Company nor any Restricted Subsidiary has a contract, agreement, arrangement, understanding or obligation of any kind, whether written or oral, with such Subsidiary other than (A) those that might be obtained at the time from Persons who are not Affiliates of the Company Directories Sale Subsidiary or (B) administrativeany other Subsidiary that is acquired or created after the Effective Date as an Unrestricted Subsidiary by written notice to the Administrative Agent; provided that, tax sharing in addition to those Subsidiaries previously designated as “Unrestricted Subsidiaries” by the Borrower pursuant to the Existing Credit Agreement and set forth on Schedule 5.13, the Borrower shall only be permitted to so designate a new Unrestricted Subsidiary after the Effective Date and so long as (a) no Default or Event of Default exists or would result therefrom, (b) such Subsidiary does not own any capital stock or Indebtedness of, or own or hold a Lien on any property of, the Borrower or any other ordinary course contracts, agreements, arrangements and understandings or obligations entered into in Subsidiary that is not a subsidiary of the ordinary course of business; Subsidiary to be so designated and (c) such Unrestricted Subsidiary shall be capitalized (to the extent capitalized by the Borrower or any of its Subsidiaries) through Investments permitted by, and in compliance with, Section 6.04(l) or (v), with any assets owned by such Unrestricted Subsidiary at the time of the initial designation thereof to be treated as Investments pursuant to Section 6.04(l) neither or (v); provided that at the Company nor time of the initial Investment by the Borrower or any Restricted Subsidiary has any obligation to subscribe for additional shares of Capital Stock or other Equity Interests its Subsidiaries in such Subsidiary, or to maintain or preserve the Borrower shall designate such Subsidiary's financial condition or to cause such Subsidiary to achieve certain levels of operating results, other than as permitted under Section 4.07 hereof. Notwithstanding the foregoing, the Company may not designate entity as an Unrestricted Subsidiary any Subsidiary which, on in a written notice to the date of this Indenture, is a Significant Subsidiary, and may not sell, transfer or otherwise dispose of any properties or assets of any such Significant Subsidiary to an Unrestricted Subsidiary, other than in the ordinary course of businessAdministrative Agent. The Board of Directors Borrower may designate any Unrestricted Subsidiary as to be a Restricted SubsidiarySubsidiary for purposes of this Agreement (each, a “Subsidiary Redesignation”); provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if (i) such Indebtedness is permitted under Section 4.09 hereof Unrestricted Subsidiary, both before and after giving effect to such designation, shall be a wholly owned Subsidiary of the Borrower, (ii) no Default or Event of Default then exists or would occur as a result consequence of any such Subsidiary Redesignation, (iii) calculations are made by the Borrower of Pro Forma Compliance with the Financial Covenant, if applicable at such time, for the relevant period, as if the respective Subsidiary Redesignation (as well as all other Subsidiary Redesignations theretofore consummated after the first day of such designationperiod) had occurred on the first day of such period, and such calculations shall show that such Financial Covenant would have been complied with if the Subsidiary Redesignation had occurred on the first day of such period (for this purpose, if the first day of the respective period occurs prior to the Effective Date, calculated as if the Financial Covenant had been applicable from the first day of such period), (iv) based on good faith projections prepared by the Borrower for the period from the date of the respective Subsidiary Redesignation to the date that is one year thereafter, the level of financial performance measured by the Financial Covenant shall be better than or equal to such level as would be required to provide that no Default or Event of Default would exist under the Financial Covenant through the date that is one year from the date of the respective Subsidiary Redesignation, (v) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Subsidiary Redesignation (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (vi) the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by a Financial Officer, certifying to the best of such officer’s knowledge, compliance with the requirements of preceding clauses (i) through (v), inclusive, and containing the calculations required by the preceding clauses (iii) and (iv), and (vii) any Unrestricted Subsidiary subject to a Subsidiary Redesignation may not thereafter be designated as an Unrestricted Subsidiary.

Designation of Unrestricted Subsidiaries. The Board of Directors of Holdings may designate any Subsidiary that is not a Loan Party (including any Restricted Subsidiary or any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary so long as: if (ia) neither the Company nor such Subsidiary does not own any Restricted Equity Interests of, and does not own or hold any Lien on any property of, any Loan Party, (b) such Subsidiary does not own or lease any Network Infrastructure, (c) such Subsidiary is directly or indirectly liable for any Indebtedness of such Subsidiary; (ii) no default with respect not party to any Indebtedness of such Subsidiary would permit (upon noticematerial agreement, lapse of time contract, arrangement or otherwise) any holder of any other Indebtedness of the Company understanding with Holdings or any Restricted Subsidiary unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to declare a default on Holdings or such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; (iii) any Investment in such Subsidiary deemed to be made as a result of designating such Subsidiary an Unrestricted Subsidiary will not violate the provisions of Section 4.07 hereof; (iv) neither the Company nor any Restricted Subsidiary has a contract, agreement, arrangement, understanding or obligation of any kind, whether written or oral, with such Subsidiary other than (A) those that might be obtained at the time from in an arm's-length transaction with Persons who are not Affiliates of the Company or Holdings, (B) administrative, tax sharing and other ordinary course contracts, agreements, arrangements and understandings or obligations entered into in the ordinary course of business; and (vd) neither the Company Holdings nor any Restricted Subsidiary has any direct or indirect obligation to subscribe for additional shares of Capital Stock or other Equity Interests in such Subsidiary, Subsidiary or to maintain or preserve such Subsidiary's financial condition or to cause such Subsidiary to achieve certain any specified levels of operating results, (e) such Subsidiary has at least one director on its board of directors that is not a director or executive officer of Holdings or any Restricted Subsidiary and at least one executive officer that is not a director or executive officer of Holdings or any Restricted Subsidiary, (f) such Subsidiary does not hold any Concession or other than as permitted Governmental Approval relating to the Project, (g) no Loan Party has Guaranteed any Indebtedness of such Subsidiary outstanding at the time of such designation, (h) such Subsidiary does not have any Indebtedness outstanding if the occurrence of a default thereunder, after the giving of notice, lapse of time or otherwise, or the exercise of remedies with respect thereto would result in a default under Section 4.07 hereof. Notwithstanding any Indebtedness of any Loan Party or otherwise permit, after the foregoinggiving of notice, lapse of time or otherwise, any holder of any Indebtedness of any Loan Party to accelerate the maturity of such Indebtedness and (i) after giving effect to such designation Holdings, the Company may not designate as Borrower and the Restricted Subsidiaries will be in compliance with the provisions of Section 6.04. For the purposes of determining compliance with clause (i) of the previous sentence, all investments made by Holdings or any Restricted Subsidiary in a Subsidiary on or prior to the date that such Subsidiary is designated an Unrestricted Subsidiary any Subsidiary which, shall be deemed to be made on the date of this Indenture, is a Significant Subsidiary, and may not sell, transfer or otherwise dispose of any properties or assets of any such Significant Subsidiary to an Unrestricted Subsidiary, other than in the ordinary course of businessdesignation. The Board of Directors of Holdings may designate any Unrestricted Subsidiary as to be a Restricted Subsidiary; provided 130 PROVIDED that (a) Holdings is in compliance on a pro forma basis after giving effect to such designation, with the covenants contained in Sections 6.15 through 6.24 recomputed as at the last day of the most recently ended fiscal quarter of Holdings for which financial statements are available, as if such designation had occurred on the first day of each relevant period for testing such compliance and (b) immediately after giving effect to such designation, no Default shall have occurred and be continuing. Any designation permitted under this Section shall be evidenced to the Agents by delivering to each of them a certified copy of the resolution of the Board of Directors of Holdings giving effect to such designation and a certificate of a Financial Officer certifying that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if (i) such Indebtedness is permitted under Section 4.09 hereof and (ii) no Default or Event of Default would occur as a result of such designationcomplies with the foregoing conditions.

Designation of Unrestricted Subsidiaries. The Board Holdings’ board of Directors may directors may, at any time, designate any Subsidiary (including any Restricted Subsidiary or any newly that is acquired or newly formed Subsidiary) to be created after the Closing Date as an Unrestricted Subsidiary by prior written notice to the Administrative Agent; provided that Holdings shall only be permitted to so designate a new Unrestricted Subsidiary after the Closing Date and so long as: as (a) no Default or Event of Default exists or would result therefrom, (b) such Subsidiary does not own any capital stock or Indebtedness of, or own or hold a Lien on any property of, Holdings or any other Subsidiary that is not a subsidiary of the Subsidiary to be so designated, (c) such Unrestricted Subsidiary shall be capitalized (to the extent capitalized by Holdings or any of its Subsidiaries) through Investments permitted by, and in compliance with, Sections 7.03(i) or (k) with any assets owned by such Unrestricted Subsidiary at the time of the initial designation thereof to be treated as Investments pursuant to Section 7.03(i) or (k) and (d) Holdings shall have been able to make a Restricted Payment in accordance with Section 7.06(g) in an amount equal to the greater of (i) neither the Company nor any Restricted aggregate of all investments made in such Subsidiary is directly or indirectly liable for any Indebtedness and (ii) the fair market value of such Subsidiary; (ii) no default with respect to any Indebtedness of such Subsidiary would permit (upon notice, lapse of time or otherwise) any holder of any other Indebtedness of the Company or any Restricted Subsidiary to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; (iii) any Investment in such Subsidiary deemed to be made as a result of designating such Subsidiary an Unrestricted Subsidiary will not violate the provisions of Section 4.07 hereof; (iv) neither the Company nor any Restricted Subsidiary has a contract, agreement, arrangement, understanding or obligation of any kind, whether written or oral, with such Subsidiary other than (A) those provided that might be obtained at the time from Persons who are not Affiliates of the Company initial Investment by Holdings or (B) administrative, tax sharing and other ordinary course contracts, agreements, arrangements and understandings or obligations entered into in the ordinary course any of business; and (v) neither the Company nor any Restricted Subsidiary has any obligation to subscribe for additional shares of Capital Stock or other Equity Interests its Subsidiaries in such Subsidiary, or to maintain or preserve the Borrower shall designate such Subsidiary's financial condition or to cause such Subsidiary to achieve certain levels of operating results, other than as permitted under Section 4.07 hereof. Notwithstanding the foregoing, the Company may not designate entity as an Unrestricted Subsidiary any Subsidiary which, on in a written notice to the date of this Indenture, is a Significant Subsidiary, and may not sell, transfer or otherwise dispose of any properties or assets of any such Significant Subsidiary to an Unrestricted Subsidiary, other than in the ordinary course of businessAdministrative Agent. The Board of Directors Holdings may designate any Unrestricted Subsidiary as to be a Restricted SubsidiarySubsidiary for purposes of this Agreement (each, a “Subsidiary Redesignation”); provided further that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if (i) such Indebtedness is permitted under Section 4.09 hereof Unrestricted Subsidiary, both before and after giving effect to such designation, shall be a wholly owned Subsidiary of Holdings, (ii) no Default or Event of Default then exists or would occur as a result consequence of any such Subsidiary Redesignation, (iii) based on good faith projections prepared by Holdings for the period from the date of the respective Subsidiary Redesignation to the date that is one year thereafter, the Consolidated Leverage Ratio shall be better than or equal to such level as would be required to provide that no Default or Event of Default would exist under Section 7.11 through the date that is one year from the date of the respective Subsidiary Redesignation, (iv) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such designationSubsidiary Redesignation (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (v) Holdings’ shall have delivered to the Administrative Agent an officer’s certificate executed by a Responsible Officer, certifying to the best of such officer’s knowledge, compliance with the requirements of preceding clauses (i) through (iv), inclusive, and containing the calculations required by the preceding clause (iii), and (vi) any Unrestricted Subsidiary subject to a Subsidiary Redesignation may not thereafter be designated as an Unrestricted Subsidiary.