Limitations on Designation of Unrestricted Subsidiaries. The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if: (1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and (2) at the time of and immediately after giving effect to such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary: (1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; (2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09; (3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and (4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if: (1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and (2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trustee.
Appears in 8 contracts
Samples: Indenture (QVC Inc), Fourth Supplemental Indenture (QVC Inc), Third Supplemental Indenture (QVC Inc)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary of the Issuer (including any newly formed acquired or newly acquired formed Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (i) a Permitted Investment or (ii) an Investment pursuant to Section 4.08(a), in either case, in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date, less, for this purpose, the amount of any intercompany loan from the Issuer or any Restricted Subsidiary to such Subsidiary that was treated as a Restricted Payment.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where any Restricted Subsidiary in excess of $25.0 million in the aggregate, except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such Subsidiary. Restricted Payment permitted pursuant to Section 4.08.
(c) If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements of Section 4.16(a) and (b) as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at as of the date of such time cessation and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.07 or the Lien is not permitted under Section 4.104.09, the Issuer shall be in default of the applicable covenant. .
(d) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by (1) resolutions of the Board of Directors of the Issuer and (2) an Officer’s Officers’ Certificate certifying compliance with the foregoing provisions provisions, in each case delivered to the Trustee.
Appears in 4 contracts
Samples: Supplemental Indenture (Alere Inc.), Sixteenth Supplemental Indenture (Alere Inc.), Fifteenth Supplemental Indenture (Alere Inc.)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to clause (a) of Section 4.11 in either case, in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become a general partner of Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any such Restricted Subsidiary. .
(c) If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 or the Lien is not permitted under Section 4.104.14, the Issuer shall be in default of the applicable covenant. Section.
(d) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 4 contracts
Samples: Indenture (Basic Energy Services Inc), Indenture (Basic Energy Services Inc), Indenture (Basic Energy Services Inc)
Limitations on Designation of Unrestricted Subsidiaries. The (a) After the Issue Date, the Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.11(a) of this Indenture, in either case, in an amount (the Consolidated Leverage Test would be satisfied“Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date. No After the Issue Date, no Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) Subsidiary has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07;Debt.
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 of this Indenture or the Lien is not permitted under Section 4.104.14 of this Indenture, the Issuer shall be in default of the applicable covenant. .
(c) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(d) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 4 contracts
Samples: Indenture (American Greetings Corp), Indenture (American Greetings Corp), Indenture (American Greetings Corp)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to clause (a) of Section 4.11, in either case in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiaryunless:
(1) has no all of the Indebtedness other than of such Subsidiary and its Subsidiaries shall, at the time of Designation, consist of Non-Recourse Debt Debt, except any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and other obligations arising by operation except for any Contingent Obligations of law, including joint the Issuer or any Restricted Subsidiary in respect of Indebtedness of such Unrestricted Subsidiary that is permitted as both an incurrence of Indebtedness and several liability for taxes, ERISA obligations and similar items, except, an Investment (in each case, pursuant case in an amount equal to Investments which are made in accordance with Section 4.07the amount of such Indebtedness so guaranteed) permitted by Sections 4.10 and 4.11);
(2) on the date such Subsidiary is Designated an Unrestricted Subsidiary, such Subsidiary is not party to any agreement, contract, arrangement or understanding (other than Contingent Obligations permitted under clause (1) above) with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09understanding, taken as a whole, are not materially less favorable to the Issuer or the Restricted Subsidiary than those that could reasonably be expected to have been obtained at the time from Persons who are not Affiliates of the Issuer, as determined in good faith by the Issuer;
(3) such subsidiary is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests of such Person or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, results (in each case, pursuant to Investments which are made in accordance with Section 4.07case other than Contingent Obligations permitted under clause (1) above); and
(4) will such subsidiary has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another any Restricted Subsidiary, except for any pledge of the Equity Interests of such Unrestricted Subsidiary) where Subsidiary to secure Indebtedness of the Issuer or such other Subsidiary will become a general partner of any such Restricted Subsidiary. .
(c) If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 or the Lien is not permitted under Section 4.104.14, the Issuer shall be in default of the applicable covenant. Section.
(d) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 3 contracts
Samples: Indenture (Hercules Offshore, Inc.), Indenture (Hercules Offshore, Inc.), Indenture (Hercules Offshore, Inc.)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1i) no No Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2ii) Either (A) the Subsidiary to be so Designated has total assets of $1,000 or less; or (B) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (x) a Permitted Investment or (y) an Investment pursuant to Section 6.09(a), in either case, in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall may be Designated as an “Unrestricted Subsidiary” unless if such Subsidiary:
Subsidiary or any of its Subsidiaries (1i) has no Indebtedness owns (A) any Equity Interests (other than Non-Recourse Debt and other obligations arising by operation Qualified Equity Interests) of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or (B) any Equity Interests of any Restricted Subsidiary unless the terms that is not a Subsidiary of the agreement, contract, arrangement Subsidiary to be so Designated or understanding comply with Section 4.09;
(3ii) is a Person with respect to which neither either the Issuer nor or any Restricted Subsidiary has any direct or indirect obligation (aA) to subscribe for additional Equity Interests or (bB) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with unless such obligation is a Permitted Investment or is otherwise permitted under Section 4.07; and6.09.
(4c) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements of Section 6.17(a) and (b) as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 6.08 or the Lien is not permitted under Section 4.106.10, the Issuer shall be in default of the applicable covenant. Section.
(d) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1i) no No Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2ii) all All Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee, certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 3 contracts
Samples: Indenture (Us Concrete Inc), Indenture (Bode Concrete LLC), Indenture (Bode Concrete LLC)
Limitations on Designation of Unrestricted Subsidiaries. The At any time prior to a Suspension Event (or after the Reversion Date with respect thereto), the Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) at the time of and immediately after giving effect to such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.074.06;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;4.08; and
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant4.06. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trustee.
Appears in 3 contracts
Samples: Indenture (Match Group, Inc.), Indenture (Iac/Interactivecorp), Indenture (Match Group, Inc.)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer Company may designate any Restricted Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as Company to be an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
Subsidiary if (1) no that designation would not cause a Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) at the time of and immediately after giving effect Company concurrently designates, or has previously designated, such Restricted Subsidiary to such Designation, the Consolidated Leverage Test would be satisfied. No an Unrestricted Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made and in accordance compliance with Section 4.07;each syndicated Credit Facility. The Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary.
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels Any designation of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries Company as an Unrestricted Subsidiary must be evidenced by delivery to the Trustee of an Officers’ Certificate certifying that such designation complied with Section 4.10(a).
(other than another Unrestricted Subsidiaryc) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails would fail to meet the preceding requirements as an definition of “Unrestricted Subsidiary, ,” it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at as of such time date and, if the Indebtedness is such Liens are not permitted to be incurred as of such date under Section 4.06 or the Lien is not permitted under Section 4.104.11, the Issuer Company shall be in default of the applicable such covenant. .
(d) The Issuer Company may redesignate an at any time designate any Unrestricted Subsidiary as to be a Restricted Subsidiary (of the Company; provided that such designation will be deemed to be an incurrence of Liens by a “Redesignation”) Restricted Subsidiary of the Company of any outstanding Liens of such Unrestricted Subsidiary, and such designation shall only if:
be permitted if (1) no Default shall have occurred such Liens are permitted under Section 4.11 and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments no Event of such Unrestricted Subsidiary outstanding immediately Default would be in existence following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trusteedesignation.
Appears in 3 contracts
Samples: Fifth Supplemental Indenture (LGI Homes, Inc.), Fourth Supplemental Indenture (LGI Homes, Inc.), Third Supplemental Indenture (LGI Homes, Inc.)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer Company may designate after the Issue Date any Restricted Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “"Unrestricted Subsidiary” " under this Indenture (a “"Designation”") only if:
(1i) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and;
(2ii) the Company would be permitted to make an Investment (other than a Permitted Investment covered by clause (x) of the definition thereof) at the time of and immediately after giving effect Designation (assuming the effectiveness of such Designation) pursuant to the first paragraph of Section 10.9 in an amount (the "Designation Amount") equal to the Fair Market Value of the Company's interest in such Subsidiary on such date; and
(iii) the Company would be permitted under this Indenture to incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 10.8 at the time of such Designation (assuming the effectiveness of such Designation). In the event of any such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary Company shall be Designated as deemed to have made an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, Investment constituting a Restricted Payment pursuant to Investments which are made in accordance with Section 4.07;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe 10.9 for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for all purposes of this Indenture on in the date that is 30 days after the Issuer Designation Amount. The Company shall not, and shall not cause or permit any Restricted Subsidiary has obtained knowledge to, at any time (x) provide credit support for or subject any of such failure its property or assets (unless such failure has been cured by such date)other than the Capital Stock of any Unrestricted Subsidiary) to the satisfaction of, and any Indebtedness of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness), (y) be directly or indirectly liable for any Indebtedness of any Unrestricted Subsidiary or (z) be directly or indirectly liable for any Indebtedness which provides that the holder thereof may (upon notice, lapse of time or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its final Stated Maturity upon the occurrence of a default with respect to any Indebtedness of any Unrestricted Subsidiary and (including any Liens on assets right to take enforcement action against such Unrestricted Subsidiary). All Subsidiaries of such Subsidiary Unrestricted Subsidiaries shall automatically be deemed to be incurred by Unrestricted Subsidiaries.
(b) The Company may revoke any Designation of a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate as an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”"Revocation") only if:
(1i) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; Revocation, and
(2ii) all Liens, Liens and Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation Revocation would, if incurred or made at such timetime by a Restricted Subsidiary, have been permitted to be incurred or made for all purposes of this Indenture. .
(c) All Designations and Redesignations Revocations must be evidenced by resolutions Board Resolutions of the Board of Directors of Company delivered to the Issuer and an Officer’s Certificate Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 2 contracts
Samples: Indenture (Integrated Electrical Services Inc), Indenture (NBH Holdings Co Inc)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer Holdings may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Holdings as an “Unrestricted Subsidiary” under this Indenture Agreement and otherwise in accordance with the Senior Note Documents (a “Designation”) only if:
(1i) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2ii) at the time of and immediately after giving effect to such Designation, the Consolidated Leverage Test Holdings would be satisfiedpermitted to make an Investment in an amount (the “Designation Amount”) equal to the fair market value of Holdings’ proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1A) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2B) is not party to any agreement, contract, arrangement or understanding with the Issuer Holdings or any Restricted Subsidiary that is not an Unrestricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Holdings or the Subsidiary that is not an Unrestricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3C) is a Person with respect to which neither the Issuer Holdings nor any Restricted Subsidiary that is not an Unrestricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4D) will has not become a guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of Holdings or any Subsidiary that is not an Unrestricted Subsidiary, except for any guarantee given solely to support the pledge by Holdings or any Restricted Subsidiary of the Issuer or its other Subsidiaries (other than another Equity Interests of such Unrestricted Subsidiary) where , which guarantee is not recourse to Holdings or any Subsidiary that is not an Unrestricted Subsidiary, and except to the Issuer or such other Subsidiary will become a general partner of any such Subsidiaryextent the amount thereof Payment is permitted pursuant to Section 6.02. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), Agreement and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time that is not an Unrestricted Subsidiary as of the date and, if the Indebtedness is not permitted to be incurred under the covenant described under Section 4.06 6.01 or the Lien is not permitted under the covenant described under Section 4.10, the Issuer 6.02 Holdings shall be in default of the applicable covenant. The Issuer Holdings may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trustee.
Appears in 2 contracts
Samples: Credit Agreement (Massey Energy Co), Credit Agreement (Massey Energy Co)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer (other than the Co-Issuer) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.11(a), in either case, in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer, the Co-Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer, the Co-Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither none of the Issuer, the Co-Issuer nor or any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer, the Co-Issuer or any Restricted Subsidiary, except for any guarantee given solely to support the pledge by the Issuer, the Co-Issuer or any Restricted Subsidiary of the Equity Interests of such Unrestricted Subsidiary, which guarantee is not recourse to the Issuer, the Co-Issuer or its other Subsidiaries any Restricted Subsidiary, and except to the extent the amount thereof constitutes a Restricted Payment permitted pursuant to Section 4.11; provided, further, that an Unrestricted Subsidiary may have previously been a Guarantor and have provided a Note Guarantee of the Notes.
(other than another Unrestricted Subsidiaryc) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements of Section 4.22(a) and (b) as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 or the Lien is not permitted under Section 4.104.12, the Issuer shall be in default of the applicable covenant. The Issuer may not designate the Co-Issuer as an Unrestricted Subsidiary.
(d) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been be permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 2 contracts
Samples: Indenture (Westmoreland Energy LLC), Indenture (WESTMORELAND COAL Co)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer Company may designate after the Issue Date any Restricted Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “"Unrestricted Subsidiary” " under this Indenture (a “"Designation”") only if:
(1i) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and;
(2ii) the Company would be permitted to make an Investment (other than a Permitted Investment, except a Permitted Investment covered by clause (x) of the definition thereof) at the time of and immediately after giving effect Designation (assuming the effectiveness of such Designation) pursuant to the first paragraph of Section 10.9 in an amount (the "Designation Amount") equal to the Fair Market Value of the Company's interest in such Subsidiary on such date calculated in accordance with GAAP; and
(iii) the Company would be permitted under this Indenture to incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 10.8 at the time of such Designation (assuming the effectiveness of such Designation). In the event of any such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary Company shall be Designated as deemed to have made an “Investment constituting a Restricted Payment pursuant to Section 10.9 for all purposes of this Indenture in the Designation Amount. The Company shall not, and shall not cause or permit any Restricted Subsidiary to, at any time (x) provide credit support for or subject any of its property or assets (other than the Capital Stock of any Unrestricted Subsidiary” unless ) to the satisfaction of, any Indebtedness of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Subsidiary:
Indebtedness), (1y) has no be directly or indirectly liable for any Indebtedness other than Non-Recourse Debt and other obligations arising by operation of lawany Unrestricted Subsidiary or (z) be directly or indirectly liable for any Indebtedness which provides that the holder thereof may (upon notice, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant lapse of time or both) declare a default thereon or cause the payment thereof to Investments which are made in accordance be accelerated or payable prior to its final scheduled maturity upon the occurrence of a default with Section 4.07;
(2) is not party respect to any agreementIndebtedness of any Unrestricted Subsidiary (including any right to take enforcement action against such Unrestricted Subsidiary), contract, arrangement or understanding with except any non-recourse guarantee given solely to support the Issuer pledge by the Company or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels Capital Stock of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it . All Subsidiaries of Unrestricted Subsidiaries shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall automatically be deemed to be incurred by Unrestricted Subsidiaries.
(b) The Company may revoke any Designation of a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate as an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”"Revocation") only if:
(1i) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; Revocation, and
(2ii) all Liens, Liens and Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation Revocation would, if incurred or made at such timetime by a Restricted Subsidiary, have been permitted to be incurred or made for all purposes of this Indenture. .
(c) In the event the Company or a Restricted Subsidiary makes any Investment in any Person which was not previously a Subsidiary and such Person thereby becomes a Subsidiary, such Person shall automatically be an Unrestricted Subsidiary and the Company may designate such Subsidiary as a Restricted Subsidiary only if it meets the foregoing requirements of clauses (i) and (ii) of paragraph (b).
(d) All Designations and Redesignations Revocations must be evidenced by resolutions Board Resolutions of the Board of Directors of Company delivered to the Issuer and an Officer’s Certificate Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 2 contracts
Samples: Indenture (Wyne Systems Inc), Indenture (United Rentals North America Inc)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) either (A) the Subsidiary to be so Designated has total assets of $1,000 or less; or (B) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (x) a Permitted Investment or (y) an Investment pursuant to Section 4.11, in either case, in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless if such Subsidiary:
Subsidiary or any of its Subsidiaries owns (1i) has no Indebtedness any Equity Interests (other than Non-Recourse Debt and other obligations arising by operation Qualified Equity Interests) of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or (ii) any Equity Interests of any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) that is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries Subsidiary to be so Designated.
(other than another Unrestricted Subsidiaryc) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements of Section 4.19(a) and (b) as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 or the Lien is not permitted under Section 4.104.12, the Issuer shall be in default of the applicable covenant. section.
(d) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee, certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 2 contracts
Samples: Indenture (Ply Gem Holdings Inc), Indenture (Ply Gem Holdings Inc)
Limitations on Designation of Unrestricted Subsidiaries. The (a) After the Issue Date, the Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Supplemental Indenture (a “Designation”) only if:
(1i) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2ii) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.11(a) hereof, in either case, in an amount (the Consolidated Leverage Test would be satisfied“Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date. No After the Issue Date, no Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) Subsidiary has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07;Debt.
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Supplemental Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 hereof or the Lien is not permitted under Section 4.104.14 hereof, the Issuer shall be in default of the applicable covenant. .
(c) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1i) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2ii) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Supplemental Indenture. .
(d) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 2 contracts
Samples: First Supplemental Indenture (American Greetings Corp), First Supplemental Indenture (American Greetings Corp)
Limitations on Designation of Unrestricted Subsidiaries. The Parent and the Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Parent as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Parent or the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to the Consolidated Leverage Test would be satisfiedfirst paragraph of Section 4.08, in either case, in an amount (the “Designation Amount”) equal to the Fair Market Value of the Parent’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Parent, nor the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(43) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Restricted Subsidiary, it shall thereafter cease except for any guarantee given solely to be an Unrestricted Subsidiary for purposes of this Indenture on support the date that is 30 days after pledge by the Issuer or any Restricted Subsidiary has obtained knowledge of the Equity Interests of such failure (unless such failure has been cured by such date)Unrestricted Subsidiary, and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness which guarantee is not permitted recourse to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenantor any Restricted Subsidiary. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(13) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(24) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Parent or the Issuer, delivered to the Trustee, certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 2 contracts
Samples: Indenture (Gsi Group Inc), Indenture (Gsi Group Inc)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer Company may designate any Restricted Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1i) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and;
(2ii) the Company would be permitted to make an Investment (other than a Permitted Investment, except a Permitted Investment covered by clause (xii) of the definition thereof) at the time of and immediately after giving effect Designation (assuming the effectiveness of such Designation) pursuant to the first paragraph of Section 10.09 in an amount (the “Designation Amount”) equal to the Fair Market Value of the Company’s interest in such Subsidiary on such date calculated in accordance with GAAP; and
(iii) the Company would be permitted under this Indenture to incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 10.08 at the time of such Designation (assuming the effectiveness of such Designation). In the event of any such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary Company shall be Designated as deemed to have made an “Investment constituting a Restricted Payment pursuant to Section 10.09 for all purposes of this Indenture in the Designation Amount. The Company shall not, and shall not cause or permit any Restricted Subsidiary to, at any time (x) provide credit support for or subject any of its property or assets (other than the Capital Stock of any Unrestricted Subsidiary” unless ) to the satisfaction of, any Indebtedness of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Subsidiary:
Indebtedness), (1y) has no be directly or indirectly liable for any Indebtedness other than Non-Recourse Debt and other obligations arising by operation of lawany Unrestricted Subsidiary or (z) be directly or indirectly liable for any Indebtedness which provides that the holder thereof may (upon notice, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant lapse of time or both) declare a default thereon or cause the payment thereof to Investments which are made in accordance be accelerated or payable prior to its final scheduled maturity upon the occurrence of a default with Section 4.07;
(2) is not party respect to any agreementIndebtedness of any Unrestricted Subsidiary (including any right to take enforcement action against such Unrestricted Subsidiary), contract, arrangement or understanding with except any non-recourse guarantee given solely to support the Issuer pledge by the Company or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels Capital Stock of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it . All Subsidiaries of Unrestricted Subsidiaries shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall automatically be deemed to be incurred by Unrestricted Subsidiaries.
(b) The Company may revoke any Designation of a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate as an Unrestricted Subsidiary as a Restricted Subsidiary (a “RedesignationRevocation”) only if:
(1i) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; Revocation, and
(2ii) all Liens, Liens and Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation Revocation would, if incurred or made at such timetime by a Restricted Subsidiary, have been permitted to be incurred or made for all purposes of this Indenture. .
(c) All Designations and Redesignations Revocations must be evidenced by resolutions Board Resolutions of the Board of Directors of Company delivered to the Issuer and an Officer’s Certificate Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 2 contracts
Samples: Indenture (United Rentals Inc /De), Indenture (United Rentals Gulf Inc)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer Parent may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Parent (other than the Issuer) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Parent would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to the Consolidated Leverage Test would be satisfiedfirst paragraph of Section 4.08 above, in either case, in an amount (the “Designation Amount”) equal to the Fair Market Value of the Parent’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Permitted Unrestricted Subsidiary Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer Parent or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply (i) are no less favorable to the Parent or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Parent or such Restricted Subsidiary or (ii) would be permitted as (a) an Affiliate Transaction under and in compliance with Section 4.10, (b) an Asset Sale under and in compliance with Section 4.09, (c) a Permitted Investment or (d) an Investment under and in compliance with Section 4.08;
(3) is a Person with respect to which neither the Issuer Parent nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer Parent or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Restricted Subsidiary. If, at any timetime after the Designation, any Unrestricted Subsidiary fails to meet the requirements set forth in the preceding requirements as an Unrestricted Subsidiaryparagraph, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.104.11, the Issuer Parent shall be in default of the applicable covenant. Notwithstanding the foregoing, the Parent may Designate a Subsidiary as an Unrestricted Subsidiary without complying with the first two paragraphs of this Section 4.15 if (a) such Subsidiary is a Consolidated Joint Venture and (b) such Designation is made within 30 days of such Joint Venture becoming a Subsidiary. Any such Unrestricted Subsidiary shall, however, be required subsequent to such Designation to comply with the immediately preceding paragraph; provided that such Unrestricted Subsidiary shall not be deemed to be in violation of the requirements set forth in the second paragraph of this covenant to the extent that the Indebtedness, obligation, agreement or other arrangement that would otherwise violate such paragraph was in existence at the time such Joint Venture became a Subsidiary as in effect at such time. The Parent may not Designate the Issuer as an Unrestricted Subsidiary. As of the Issue Date, the Parent shall be deemed to have Designated Duxford Title Reinsurance Company, Cerro Plata Associates, LLC, 242 Cerro Plata, LLC and Fairway Farms, LLC, as Unrestricted Subsidiaries. The Parent may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer Parent delivered to the Trustee and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 2 contracts
Samples: Indenture (William Lyon Homes Inc), Indenture (William Lyon Homes)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer Company may designate any Restricted Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1i) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and;
(2ii) the Company would be permitted to make an Investment (other than a Permitted Investment, except a Permitted Investment covered by clause (xii) of the definition thereof) at the time of and immediately after giving effect Designation (assuming the effectiveness of such Designation) pursuant to the first paragraph of Section 10.09 in an amount (the “Designation Amount”) equal to the Fair Market Value of the Company’s interest in such Subsidiary on such date calculated in accordance with GAAP; and
(iii) the Company would be permitted under this Indenture to incur $1.00 of additional Indebtedness pursuant to Section 10.08(a) at the time of such Designation (assuming the effectiveness of such Designation). In the event of any such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary Company shall be Designated as deemed to have made an “Investment constituting a Restricted Payment pursuant to Section 10.09 for all purposes of this Indenture in the Designation Amount. The Company shall not, and shall not cause or permit any Restricted Subsidiary to, at any time (x) provide credit support for or subject any of its property or assets (other than the Capital Stock of any Unrestricted Subsidiary” unless ) to the satisfaction of, any Indebtedness of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Subsidiary:
Indebtedness), (1y) has no be directly or indirectly liable for any Indebtedness other than Non-Recourse Debt and other obligations arising by operation of lawany Unrestricted Subsidiary or (z) be directly or indirectly liable for any Indebtedness which provides that the holder thereof may (upon notice, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant lapse of time or both) declare a default thereon or cause the payment thereof to Investments which are made in accordance be accelerated or payable prior to its final scheduled maturity upon the occurrence of a default with Section 4.07;
(2) is not party respect to any agreementIndebtedness of any Unrestricted Subsidiary (including any right to take enforcement action against such Unrestricted Subsidiary), contract, arrangement or understanding with except any non-recourse guarantee given solely to support the Issuer pledge by the Company or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels Capital Stock of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it . All Subsidiaries of Unrestricted Subsidiaries shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall automatically be deemed to be incurred by Unrestricted Subsidiaries.
(b) The Company may revoke any Designation of a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate as an Unrestricted Subsidiary as a Restricted Subsidiary (a “RedesignationRevocation”) only if:
(1i) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; Revocation, and
(2ii) all Liens, Liens and Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation Revocation would, if incurred or made at such timetime by a Restricted Subsidiary, have been permitted to be incurred or made for all purposes of this Indenture. .
(c) All Designations and Redesignations Revocations must be evidenced by resolutions Board Resolutions of the Board of Directors of Company delivered to the Issuer and an Officer’s Certificate Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 2 contracts
Samples: Indenture (United Rentals Inc /De), Indenture (United Rentals Inc /De)
Limitations on Designation of Unrestricted Subsidiaries. The At any time prior to a Suspension Event (or after the Reversion Date with respect thereto), the Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) at the time of and immediately after giving effect to such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary shall be Designated designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.074.06;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;4.08; and
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant4.06. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trustee.
Appears in 2 contracts
Samples: Indenture (Match Group, Inc.), Indenture (Iac/Interactivecorp)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer (a) Borrower may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Borrower as an “Unrestricted Subsidiary” under this Indenture Agreement and the other Loan Documents (a “Designation”) only if:
(1i) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2ii) Borrower would be permitted to make, at the time of and immediately after giving effect to such Designation, (x) a Permitted Investment (as defined in the Consolidated Leverage Test would be satisfied. Indenture 2) or (y) an Investment pursuant to Section 4.08 of the Indenture 2, in either case, in an amount (the “Designation Amount”) equal to the Fair Market Value of Borrower’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1i) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2ii) is not party to any agreement, contract, arrangement or understanding with the Issuer Borrower or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to Borrower or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3iii) is a Person with respect to which neither the Issuer Borrower nor any Restricted Subsidiary has any direct or indirect obligation (ax) to subscribe for additional Equity Interests or (by) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4iv) will has not become a guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of Borrower or any Restricted Subsidiary, except for any guarantee given solely to support the pledge by Borrower or any Restricted Subsidiary of the Issuer or its other Subsidiaries (other than another Equity Interests of such Unrestricted Subsidiary) where the Issuer , which guarantee is not recourse to Borrower or such other Subsidiary will become a general partner of any such Restricted Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer Agreement or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), other Loan Document and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. The Issuer time.
(c) Borrower may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1i) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2ii) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. Agreement or any other Loan Document.
(d) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Borrower, delivered to Lender certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 2 contracts
Samples: Term Loan Agreement, Term Loan Agreement (Phibro Animal Health Corp)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer Company may designate after the Issue Date any Restricted Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “"Unrestricted Subsidiary” " under this Indenture (a “"Designation”") only if:
(1i) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and;
(2ii) the Company would be permitted to make an Investment (other than a Permitted Investment) at the time of and immediately after giving effect Designation (assuming the effectiveness of such Designation) pursuant to the first paragraph of Section 10.9 in an amount (the "Designation Amount") equal to the Fair Market Value of the Company's interest in such Subsidiary on such date calculated in accordance with GAAP; and
(iii) the Company would be permitted under the Indenture to incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 10.8 at the time of such Designation (assuming the effectiveness of such Designation). In the event of any such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary Company shall be Designated deemed to have made an Investment constituting a Restricted Payment pursuant to Section 10.9 for all purposes of this Indenture in the Designation Amount. Each of the Subsidiaries conducting the business identified as an “assets held for disposition or discontinuance in the Offering Memorandum shall constitute "Unrestricted Subsidiaries" on the Issue Date. The Company shall not, and shall not cause or permit any Restricted Subsidiary to, at any time (x) provide credit support other than guarantees or pledges under the Bank Facility for or subject any of its property or assets (other than the Capital Stock of any Unrestricted Subsidiary” unless ) to the satisfaction of, any Indebtedness of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Subsidiary:
Indebtedness), (1y) has no be directly or indirectly liable for any Indebtedness other than Non-Recourse Debt and other obligations arising by operation of lawany Unrestricted Subsidiary or (z) be directly or indirectly liable for any Indebtedness which provides that the holder thereof may (upon notice, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant lapse of time or both) declare a default thereon or cause the payment thereof to Investments which are made in accordance be accelerated or payable prior to its final scheduled maturity upon the occurrence of a default with Section 4.07;
(2) is not party respect to any agreementIndebtedness of any Unrestricted Subsidiary (including any right to take enforcement action against such Unrestricted Subsidiary), contract, arrangement or understanding with except any non-recourse guarantee given solely to support the Issuer pledge by the Company or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels Capital Stock of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an . No Unrestricted Subsidiary shall at any time guarantee or otherwise provide credit support for purposes any obligation of this Indenture on the date that is 30 days after the Issuer Company or any Restricted Subsidiary has obtained knowledge Subsidiary, except as provided in the Bank Facility. All Subsidiaries of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary Unrestricted Subsidiaries shall automatically be deemed to be incurred by Unrestricted Subsidiaries.
(b) The Company may revoke any Designation of a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate as an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”"Revocation") only if:
(1i) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; andRevocation;
(2ii) all Liens, Liens and Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation Revocation would, if incurred or made at such timetime by a Restricted Subsidiary, have been permitted to be incurred or made for all purposes of this Indenture. ; and
(iii) any transaction (or series of related transactions) between such Subsidiary and any of its Affiliates that occurred on or after the Issue Date while such Subsidiary was an Unrestricted Subsidiary would be permitted by Section 10.11 as if such transaction (or series of related transactions) had occurred at the time of such Revocation.
(c) In the event the Company or a Restricted Subsidiary makes any Investment in any Person which was not previously a Subsidiary and such Person thereby becomes a Subsidiary, such Person shall automatically be an Unrestricted Subsidiary and the Company may designate such Subsidiary as a Restricted Subsidiary only if it meets the foregoing requirements of clauses (i) and (ii) of paragraph (b).
(d) All Designations and Redesignations Revocations must be evidenced by resolutions Board Resolutions of the Board of Directors of Company delivered to the Issuer and an Officer’s Certificate Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 2 contracts
Samples: Indenture (Fox Kids Worldwide Inc), Indenture (Fox Kids Worldwide Inc)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) at the time of and immediately after giving effect to such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt (it being understood that a Subsidiary may have provided a Note Guarantee prior to the time it was designated as an Unrestricted Subsidiary) and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will shall not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will shall become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 2 contracts
Samples: Indenture (Affiliate Investment, Inc.), Indenture (Affiliate Investment, Inc.)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to clause (a) of Section 4.11, in either case in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiaryunless:
(1) has no all of the Indebtedness other than of such Subsidiary and its Subsidiaries shall, at the time of Designation, consist of Non-Recourse Debt Debt, except any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and other obligations arising by operation except for any Contingent Obligations of law, including joint the Issuer or any Restricted Subsidiary in respect of Indebtedness of such Unrestricted Subsidiary that is permitted as both an incurrence of Indebtedness and several liability for taxes, ERISA obligations and similar items, except, an Investment (in each case, pursuant case in an amount equal to Investments which are made in accordance with Section 4.07the amount of such Indebtedness so guaranteed) permitted by Sections 4.10 and 4.11);
(2) on the date such Subsidiary is Designated an Unrestricted Subsidiary, such Subsidiary is not party to any agreement, contract, arrangement or understanding (other than Contingent Obligations permitted under clause (1) above) with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09understanding, taken as a whole, are not materially less favorable to the Issuer or the Restricted Subsidiary than those that could reasonably be expected to have been obtained at the time from Persons who are not Affiliates of the Issuer, as determined in good faith by the Issuer;
(3) such subsidiary is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests of such Person or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, results (in each case, pursuant to Investments which are made in accordance with Section 4.07case other than Contingent Obligations permitted under clause (1) above); and
(4) will such subsidiary does not become a Subsidiary guarantee or otherwise directly or indirectly provide credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another any Restricted Subsidiary, except for any pledge of the Equity Interests of such Unrestricted Subsidiary) where Subsidiary to secure Indebtedness of the Issuer or such other Subsidiary will become a general partner of any such Restricted Subsidiary. .
(c) If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 or the Lien is not permitted under Section 4.104.14, the Issuer shall be in default of the applicable covenant. Section.
(d) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 2 contracts
Samples: Indenture (Hercules Offshore, Inc.), Indenture (Hercules Offshore, Inc.)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer Company may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Company as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Company would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.11(a) above, in either case, in an amount (the Consolidated Leverage Test would be satisfied“Designation Amount”) equal to the Fair Market Value of the Company’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer Company or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are reasonably similar to, or more favorable to the Company or the Restricted Subsidiary than, those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer Company nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any Restricted Subsidiary, except for any guarantee given solely to support the pledge by the Company or any Restricted Subsidiary of the Issuer or its other Subsidiaries (other than another Equity Interests of such Unrestricted Subsidiary) where , which guarantee is not recourse to the Issuer Company or such other Subsidiary will become any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner Restricted Payment permitted pursuant to Section 4.11 of any such Subsidiarythis Indenture. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 or the Lien is not permitted under Section 4.10, 4.13 the Issuer Company shall be in default of the applicable covenant. The Issuer Company may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Company, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 2 contracts
Samples: Indenture (Phi Inc), Indenture (Phi Inc)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to the Consolidated Leverage Test would be satisfiedfirst paragraph of Section 4.08, in either case, in an amount (the “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Permitted Unrestricted Subsidiary Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Issuer or such Restricted Subsidiary;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.08. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.104.11, the Issuer shall be in default of the applicable covenant. As of the Issue Date, the Issuer shall be deemed to have Designated MTH Mortgage, LLC and Texas Home Mortgage Company as Unrestricted Subsidiaries. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 2 contracts
Samples: Indenture (Meritage Corp), Indenture (Meritage Homes CORP)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary of the Issuer (including any newly formed acquired or newly acquired formed Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (i) a Permitted Investment or (ii) an Investment pursuant to Section 4.08(a), in either case, in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date, less, for this purpose, the amount of any intercompany loan from the Issuer or any Restricted Subsidiary to such Subsidiary that was treated as a Restricted Payment.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where any Restricted Subsidiary in excess of $25.0 million in the aggregate, except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such Subsidiary. Restricted Payment permitted pursuant to Section 4.08.
(c) If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements of Section 4.16(a) and (b) as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.07 or the Lien is not permitted under Section 4.104.09, the Issuer shall be in default of the applicable covenant. .
(d) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by (1) resolutions of the Board of Directors of the Issuer and (2) an Officer’s Officers’ Certificate certifying compliance with the foregoing provisions provisions, in each case delivered to the Trustee.
Appears in 2 contracts
Samples: First Supplemental Indenture (Inverness Medical Innovations Inc), First Supplemental Indenture (Inverness Medical Innovations Inc)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer Company may designate any Restricted Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1i) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and;
(2ii) the Company would be permitted to make an Investment (other than a Permitted Investment, except a Permitted Investment covered by clause (xi) of the definition thereof) at the time of and immediately after giving effect Designation (assuming the effectiveness of such Designation) pursuant to the first paragraph of Section 10.09 in an amount (the “Designation Amount”) equal to the Fair Market Value of the Company’s interest in such Subsidiary on such date calculated in accordance with GAAP; and
(iii) the Company would be permitted under this Indenture to incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 10.08 at the time of such Designation (assuming the effectiveness of such Designation). In the event of any such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary Company shall be Designated as deemed to have made an “Investment constituting a Restricted Payment pursuant to Section 10.09 for all purposes of this Indenture in the Designation Amount. The Company shall not, and shall not cause or permit any Restricted Subsidiary to, at any time (x) provide credit support for or subject any of its property or assets (other than the Capital Stock of any Unrestricted Subsidiary” unless ) to the satisfaction of, any Indebtedness of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Subsidiary:
Indebtedness), (1y) has no be directly or indirectly liable for any Indebtedness other than Non-Recourse Debt and other obligations arising by operation of lawany Unrestricted Subsidiary or (z) be directly or indirectly liable for any Indebtedness which provides that the holder thereof may (upon notice, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant lapse of time or both) declare a default thereon or cause the payment thereof to Investments which are made in accordance be accelerated or payable prior to its final scheduled maturity upon the occurrence of a default with Section 4.07;
(2) is not party respect to any agreementIndebtedness of any Unrestricted Subsidiary (including any right to take enforcement action against such Unrestricted Subsidiary), contract, arrangement or understanding with except any non-recourse guarantee given solely to support the Issuer pledge by the Company or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels Capital Stock of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it . All Subsidiaries of Unrestricted Subsidiaries shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall automatically be deemed to be incurred by Unrestricted Subsidiaries.
(b) The Company may revoke any Designation of a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate as an Unrestricted Subsidiary as a Restricted Subsidiary (a “RedesignationRevocation”) only if:
(1i) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; Revocation, and
(2ii) all Liens, Liens and Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation Revocation would, if incurred or made at such timetime by a Restricted Subsidiary, have been permitted to be incurred or made for all purposes of this Indenture. .
(c) All Designations and Redesignations Revocations must be evidenced by resolutions Board Resolutions of the Board of Directors of Company delivered to the Issuer and an Officer’s Certificate Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 2 contracts
Samples: Indenture (United Rentals Inc /De), Indenture (United Rentals Inc /De)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1i) no No Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2ii) Either (A) the Subsidiary to be so Designated has total assets of $1,000 or less; or (B) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (x) a Permitted Investment or (y) an Investment pursuant to Section 6.09(a), in either case, in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless if such Subsidiary:
Subsidiary or any of its Subsidiaries owns (1i) has no Indebtedness (A) any Equity Interests (other than Non-Recourse Debt and other obligations arising by operation Qualified Equity Interests) of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or (B) any Equity Interests of any Restricted Subsidiary unless the terms that is not a Subsidiary of the agreement, contract, arrangement Subsidiary to be so Designated or understanding comply with Section 4.09;
(3ii) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation obligations (aA) to subscribe for additional Equity Interests or (bB) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with unless such obligation is a Permitted Investment or is otherwise permitted under Section 4.07; and6.09.
(4c) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements of Section 6.17(a) and (b) as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 6.08 or the Lien is not permitted under Section 4.106.10, the Issuer shall be in default of the applicable covenant. Section.
(d) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1i) no No Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2ii) all All Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee, certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 2 contracts
Samples: Indenture (Us Concrete Inc), Subscription Agreement (Us Concrete Inc)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer Company may designate any Subsidiary of its Subsidiaries (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default or event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Company would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.07, in either case, in an amount (the Consolidated Leverage Test would be satisfied“Designation Amount”) equal to the Fair Market Value of the Company’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer Company or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Company or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer Company nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a guaranteed or otherwise directly or indirectly provided credit support for any of the Company’s or any Restricted Subsidiary’s Indebtedness, except for any guarantee given solely to support the pledge by the Company or any Restricted Subsidiary of the Issuer or its other Subsidiaries (other than another Equity Interests of such Unrestricted Subsidiary) where , which guarantee is not recourse to the Issuer Company or such other Subsidiary will become a general partner of any such Restricted Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.09 or the Lien is not permitted under Section 4.104.12, the Issuer Company shall be in default of the applicable covenantcovenant of this Indenture. The Issuer Company may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default or Event of Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Company’s Board of Directors of Directors, delivered to the Issuer and an Officer’s Certificate Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “"Unrestricted Subsidiary” " under this Indenture (a “"Designation”") only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to the Consolidated Leverage Test would be satisfiedfirst paragraph of SECTION 4.08, in either case, in an amount (the "Designation Amount") equal to the Fair Market Value of the Issuer's proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “"Unrestricted Subsidiary” " unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Permitted Unrestricted Subsidiary Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Issuer or such Restricted Subsidiary;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s 's financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Restricted Subsidiary, it shall thereafter cease except for any guarantee given solely to be an Unrestricted Subsidiary for purposes of this Indenture on support the date that is 30 days after pledge by the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments Equity Interests of such Unrestricted Subsidiary outstanding immediately following such Redesignation wouldSubsidiary, if incurred or made at such time, have been permitted which guarantee is not recourse to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer or any Restricted Subsidiary, and an Officer’s Certificate certifying compliance with the foregoing provisions delivered except to the Trusteeextent the amount thereof constitutes a Restricted Payment permitted pursuant to SECTION 4.
Appears in 1 contract
Samples: Indenture (Res Care Inc /Ky/)
Limitations on Designation of Unrestricted Subsidiaries. As of the Issue Date, the Issuer shall be deemed to have designated each of M/I Financial, LLC; M/I Title Agency Ltd.; TransOhio Residential Title Agency Ltd.; Washington/Metro Residential Title Agency LLC; M/I Title, LLC; K-Tampa, LLC; and The M/I Homes Foundation as Unrestricted Subsidiaries. The Issuer may designate any additional Subsidiary (including including, without limitation, any newly formed Subsidiary acquired or newly acquired Subsidiary) of created by the Issuer or any Restricted Subsidiary after the Issue Date) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.08, in either case, in an amount (the Consolidated Leverage Test would be satisfied“Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated subject to a Designation as an “Unrestricted Subsidiary” (whether such Designation is on or after the Issue Date) unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Permitted Unrestricted Subsidiary Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Issuer or such Restricted Subsidiary unless such agreement, contract, arrangement or understanding is permitted under Section 4.094.10;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, results (other than guarantees in each case, pursuant to Investments which are made in accordance with Section 4.07existence on the Issue Date); and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of Restricted Payment permitted pursuant to Section 4.08. At any such Subsidiary. If, at any time, time any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by such Subsidiary as of such date. If, within ten (10) Business Days after such date, (a) the Issuer has not redesignated such Unrestricted Subsidiary as a Restricted Subsidiary at and caused such time andRestricted Subsidiary to execute and deliver to the Trustee a supplemental indenture and a notation of guarantee in accordance with Section 4.13 and (b) after giving effect to such Redesignation and execution of a supplemental indenture and notation of guarantee, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.104.11, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary (including any Subsidiary that was deemed to be designated as an Unrestricted Subsidiary on the Issue Date) as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors Directors, or the executive committee of the Issuer and an Officer’s Certificate Board of Directors, of the Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (M I Homes Inc)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer Company may designate after the Issue Date any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “"Unrestricted Subsidiary” " under this Indenture (a “"Designation”") ----------- only if:
(1i) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and;
(2ii) the Company would be permitted to make an Investment (other than a Permitted Investment) at the time of and immediately after giving effect Designation (assuming the effectiveness of such Designation) pursuant to the first paragraph of Section 10.9 in an amount (the "Designation Amount") ------------------ equal to the Fair Market Value of the Company's interest in such Subsidiary on such date calculated in accordance with GAAP; and
(iii) the Company would be permitted under the Indenture to incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 10.8 at the time of such Designation (assuming the effectiveness of such Designation). In the event of any such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary Company shall be Designated as deemed to have made an “Investment constituting a Restricted Payment pursuant to Section 10.9 for all purposes of this Indenture in the Designation Amount. The Company shall not, and shall not cause or permit any Restricted Subsidiary to, at any time (x) provide credit support for or subject any of its property or assets (other than the Capital Stock of any Unrestricted Subsidiary” unless ) to the satisfaction of, any Indebtedness of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Subsidiary:
Indebtedness), (1y) has no be directly or indirectly liable for any Indebtedness other than Non-Recourse Debt and other obligations arising by operation of lawany Unrestricted Subsidiary or (z) be directly or indirectly liable for any Indebtedness which provides that the holder thereof may (upon notice, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant lapse of time or both) declare a default thereon or cause the payment thereof to Investments which are made in accordance be accelerated or payable prior to its final scheduled maturity upon the occurrence of a default with Section 4.07;
(2) is not party respect to any agreementIndebtedness of any Unrestricted Subsidiary (including any right to take enforcement action against such Unrestricted Subsidiary), contract, arrangement or understanding with except any non-recourse guarantee given solely to support the Issuer pledge by the Company or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels Capital Stock of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an . No Unrestricted Subsidiary shall at any time guarantee or otherwise provide credit support for purposes any obligation of this Indenture on the date that is 30 days after the Issuer Company or any Restricted Subsidiary has obtained knowledge Subsidiary, except as provided in the Bank Credit Agreement. All Subsidiaries of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary Unrestricted Subsidiaries shall automatically be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:Subsidiaries.
(1i) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; andRevocation;
(2ii) all Liens, Liens and Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation Revocation would, if incurred or made at such timetime by a Restricted Subsidiary, have been permitted to be incurred or made for all purposes of this Indenture. ; and
(iii) any transaction (or series of related transactions) between such Subsidiary and any of its Affiliates that occurred on or after the Issue Date while such Subsidiary was an Unrestricted Subsidiary would be permitted by Section 10.11 as if such transaction (or series of related transactions) had occurred at the time of such Revocation; provided, however, that this clause (iii) shall not apply to the revocation of the Designation as an Unrestricted Subsidiary on the Issue Date.
(c) In the event the Company or a Restricted Subsidiary makes any Investment in any Person which was not previously a Subsidiary and such Person thereby becomes a Subsidiary, such Person shall automatically be an Unrestricted Subsidiary and the Company may designate such Subsidiary as a Restricted Subsidiary only if it meets the foregoing requirements of clauses (i) and (ii) of paragraph (b).
(d) All Designations and Redesignations Revocations must be evidenced by resolutions Board Resolutions of the Board of Directors of Company delivered to the Issuer and an Officer’s Certificate Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (FLN Finance Inc)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer Parent may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Parent (other than the Company) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
if (1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
Designation and (2) the Parent would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.04, in either case, in an amount (the Consolidated Leverage Test would be satisfied“Designation Amount”) equal to the Fair Market Value of the Parent’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
unless: (1) has no Indebtedness neither the Company nor any of its other Subsidiaries (other than Non-Recourse Debt and Unrestricted Subsidiaries) (x) provides any direct or indirect credit support for any Indebtedness of such Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness) or (y) is directly or indirectly liable for any Indebtedness of such Subsidiary other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, exceptthan, in each case, such Investments as are permitted pursuant to Investments which are made in accordance with Section 4.07;
4.04; (2) such Subsidiary is not party to any agreement, contract, arrangement or understanding with the Issuer Parent or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply (x) are no less favorable to the Parent or the Restricted Subsidiary than those that would be reasonably expected to be obtained at the time from Persons who are not Affiliates of the Parent or such Restricted Subsidiary or (y) would be permitted as (a) an Affiliate Transaction under and in compliance with Section 4.09;
4.07, (b) an Asset Sale under and in compliance with Section 4.06, (c) a Permitted Investment or (d) an Investment under and in compliance with Section 4.04; (3) such Subsidiary is a Person with respect to which neither the Issuer Parent nor any Restricted Subsidiary has any direct or indirect obligation (ax) to subscribe for additional Equity Interests or (by) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
and (4) will such Subsidiary has not become a guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Parent or any Restricted Subsidiary, except for any guarantee given solely to support the pledge by the Parent or any Restricted Subsidiary of the Issuer or its other Subsidiaries (other than another Equity Interest of such Unrestricted Subsidiary) where , which guarantee is not recourse to the Issuer Parent or such other Subsidiary will become any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.04. If, at any timetime after the Designation, any Unrestricted Subsidiary fails to meet the requirements set forth in the preceding requirements as an Unrestricted Subsidiaryparagraph, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.03 or the Lien is not permitted under Section 4.104.12, the Issuer Parent shall be in default of the applicable covenant. The Issuer Parent may not Designate the Company as an Unrestricted Subsidiary. As of the Bridge Loan Closing Date, the Parent shall be deemed to have Designated Duxford Title Reinsurance Company, Cerro Plata Associates, LLC, Silver Creek Preserve, Nobar Water Company, Horsethief Canyon Partners and Lyon Mission, LLC as Unrestricted Subsidiaries. The Parent may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
if (1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
Redesignation and (2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer Parent delivered to the Trustee and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to the Consolidated Leverage Test would be satisfiedfirst paragraph of Section 4.08, in either case, in an amount (the “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Permitted Unrestricted Subsidiary Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Issuer or such Restricted Subsidiary;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.08. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.104.11, the Issuer shall be in default of the applicable covenant. As of the Issue Date, the Issuer has no Subsidiaries designated as Unrestricted Subsidiaries. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (M I Homes Inc)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary of the Issuer (including any newly formed acquired or newly acquired formed Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
: (1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) (A) such Subsidiary has total assets of $1,000 or less or (B) the Issuer would be permitted to make, and shall be deemed to make, at the time of and immediately after giving effect to such Designation, (i) a Permitted Investment or (ii) an Investment pursuant to Section 4.04, in either case, in an amount (the Consolidated Leverage Test would be satisfied. No “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless on such Subsidiary:
date; (13) has no Indebtedness neither the Issuer nor any of its other Subsidiaries (other than Non-Recourse Debt and Unrestricted Subsidiaries) (A) provides any direct or indirect credit support for any Indebtedness of such Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness) or (B) is directly or indirectly liable for any Indebtedness of such Subsidiary other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, exceptthan, in each case, such Investments as are permitted pursuant to Investments which are made in accordance with Section 4.07;
4.04; (24) such Subsidiary is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply (A) are no less favorable to the Issuer or the Restricted Subsidiary than those that would be reasonably expected to be obtained at the time from Persons who are not Affiliates of the Issuer or such Restricted Subsidiary or (B) would be permitted as (i) an Affiliate Transaction under and in compliance with Section 4.09;
4.07, (3ii) an Asset Sale under and in compliance with Section 4.06, (iii) a Permitted Investment, or (iv) an Investment under and in compliance with Section 4.04; (5) such Subsidiary is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (aA) to subscribe for additional Equity Interests or (bB) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, such Investments as are permitted pursuant to Investments which are made in accordance with Section 4.074.04; and
and (46) will such Subsidiary has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries any Restricted Subsidiary.
(other than another Unrestricted Subsidiaryb) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any timetime after the Designation, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, set forth in Section 4.10(a) it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.03 or the Lien is not permitted under Section 4.104.11, the Issuer shall be in default of the applicable covenant. .
(c) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
if (1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
, (2) (A) the Issuer would be able to incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a), (B) the Consolidated Fixed Charge Coverage Ratio of the Issuer and the Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer and the Restricted Subsidiaries immediately prior to such Redesignation, or (C) the Indebtedness to Tangible Net Worth Ratio of the Issuer and the Restricted Subsidiaries would be equal to or less than such ratio immediately prior to such Redesignation, in each case on a pro forma basis taking into account such Redesignation; and (3) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(d) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Officers’ Certificate delivered to the Trustee certifying compliance with the foregoing provisions provisions. Such resolutions and Officers’ Certificate shall be delivered to the TrusteeTrustee within 45 days after the end of the fiscal quarter of the Issuer in which such Designation or Redesignation is made (or, in the case of a Designation or Redesignation made during the last fiscal quarter of the Issuer’s fiscal year, within 90 days after the end of such fiscal year).
(e) Notwithstanding the foregoing, the following are Unrestricted Subsidiaries on the Issue Date: (1) Inspire Home Loans Inc., (2) Parkway Title, LLC, and (3) Parkway Financial Group, LLC.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. As of the Issue Date, the Issuer shall be deemed to have designated each of M/I Financial Corp.; M/I Title Agency Ltd.; TransOhio Residential Title Agency Ltd.; Washington/Metro Residential Title Agency, LLC; K-Tampa, LLC; and The M/I Homes Foundation as Unrestricted Subsidiaries. The Issuer may designate any additional Subsidiary (including including, without limitation, any newly formed Subsidiary acquired or newly acquired Subsidiary) of created by the Issuer or any Restricted Subsidiary after the Issue Date) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.08, in either case, in an amount (the Consolidated Leverage Test would be satisfied“Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be subject to a Designated as an “Unrestricted Subsidiary” (whether such Designation is on or after the Issue Date) unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Permitted Unrestricted Subsidiary Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Issuer or such Restricted Subsidiary unless such agreement, contract, arrangement or understanding is permitted on Section 4.094.10;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, results (other than guarantees in each case, pursuant to Investments which are made in accordance with Section 4.07existence on the Issue Date); and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of Restricted Payment permitted pursuant to Section 4.08. At any such Subsidiary. If, at any time, time any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by such Subsidiary as of such date. If, within 5 days after such date, (a) the Issuer has not redesignated such Unrestricted Subsidiary as a Restricted Subsidiary at and caused such time andRestricted Subsidiary to execute and deliver to the Trustee a supplemental indenture and a notation of guarantee in accordance with Section 4.13 and (b) after giving effect to such Redesignation and execution of a supplemental indenture and notation of guarantee, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.104.11, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary (including any Subsidiary that was deemed to be designated as an Unrestricted Subsidiary on the Issue Date) as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors Directors, or the executive committee of the Issuer and an Officer’s Certificate Board of Directors, of the Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (M I Homes Inc)
Limitations on Designation of Unrestricted Subsidiaries. The Board of Directors of the Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
: (1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.04, in either case, in an amount (the Consolidated Leverage Test would be satisfied. No “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless on such Subsidiary:
date; (13) has no Indebtedness neither the Issuer nor any of its other Subsidiaries (other than Non-Recourse Debt and Unrestricted Subsidiaries) (x) provides any direct or indirect credit support for any Indebtedness of such Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness) or (y) is directly or indirectly liable for any Indebtedness of such Subsidiary other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, exceptthan, in each case, such Investments as are permitted pursuant to Investments which are made in accordance with Section 4.07;
4.04; (24) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted such Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (ax) to subscribe for additional Equity Interests or (by) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
and (45) will such Subsidiary has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another any Restricted Subsidiary, except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interest of such Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except in the case of clauses (4) where and (5) of this Section 4.10, to the extent: (i) that the Issuer or such other Restricted Subsidiary will become could otherwise provide such a general partner Security Guarantee or incur such Indebtedness pursuant to Section 4.03; and (ii) the satisfaction of any such Subsidiaryobligation, the provision of such Security Guarantee and the incurrence of such Indebtedness otherwise would be permitted pursuant to Section 4.04. If, at any timetime after the Designation, any Unrestricted Subsidiary fails to meet the requirements set forth in the preceding requirements as an Unrestricted Subsidiary, paragraph it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.03 or the Lien is not permitted under Section 4.104.11, the Issuer shall be in default of the applicable covenant. Upon designation of a Restricted Subsidiary as an Unrestricted Subsidiary in compliance with this covenant, such Restricted Subsidiary shall, by execution and delivery of a supplemental indenture in form satisfactory to the Trustee, be released from any Security Guarantee previously made by such Restricted Subsidiary. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
if (1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
Redesignation and (2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate delivered to the Trustee certifying compliance with the foregoing provisions provisions. Such resolutions and Officer’s Certificate shall be delivered to the TrusteeTrustee within 45 days after the end of the fiscal quarter of the Issuer in which such Designation or Redesignation is made (or, in the case of a Designation or Redesignation made during the last fiscal quarter of the Issuer’s fiscal year, within 90 days after the end of such fiscal year).
Appears in 1 contract
Samples: Indenture (WCI Communities, Inc.)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer Parent may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Parent (other than the Company) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
if (1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
Designation and (2) the Parent would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.04, in either case, in an amount (the Consolidated Leverage Test would be satisfied“Designation Amount”) equal to the Fair Market Value of the Parent’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
unless: (1) has no Indebtedness neither the Company nor any of its other Subsidiaries (other than Non-Recourse Debt and Unrestricted Subsidiaries) (x) provides any direct or indirect credit support for any Indebtedness of such Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness) or (y) is directly or indirectly liable for any Indebtedness of such Subsidiary other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, exceptthan, in each case, such Investments as are permitted pursuant to Investments which are made in accordance with Section 4.07;
4.04; (2) such Subsidiary is not party to any agreement, contract, arrangement or understanding with the Issuer Parent or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply (x) are no less favorable to the Parent or the Restricted Subsidiary than those that would be reasonably expected to be obtained at the time from Persons who are not Affiliates of the Parent or such Restricted Subsidiary or (y) would be permitted as (a) an Affiliate Transaction under and in compliance with Section 4.09;
4.07, (b) an Asset Sale under and in compliance with Section 4.06, (c) a Permitted Investment or (d) an Investment under and in compliance with Section 4.04; (3) such Subsidiary is a Person with respect to which neither the Issuer Parent nor any Restricted Subsidiary has any direct or indirect obligation (ax) to subscribe for additional Equity Interests or (by) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
and (4) will such Subsidiary has not become a guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Parent or any Restricted Subsidiary, except for any guarantee given solely to support the pledge by the Parent or any Restricted Subsidiary of the Issuer or its other Subsidiaries (other than another Equity Interest of such Unrestricted Subsidiary) where , which guarantee is not recourse to the Issuer Parent or such other Subsidiary will become any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.04. If, at any timetime after the Designation, any Unrestricted Subsidiary fails to meet the requirements set forth in the preceding requirements as an Unrestricted Subsidiaryparagraph, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.03 or the Lien is not permitted under Section 4.104.12, the Issuer Parent shall be in default of the applicable covenant. The Issuer Parent may not Designate the Company as an Unrestricted Subsidiary. As of the Issue Date, the following subsidiaries of the Parent shall be deemed to be Unrestricted Subsidiaries of the Parent: Duxford Title Reinsurance Company, Cerro Plata Associates, LLC, Silver Creek Preserve, Nobar Water Company, Horsethief Canyon Partners, ClosingMark Financial Group LLC, ClosingMark Financial Services LLC, ClosingMark Holdings LLC, ClosingMark Settlement Services LLC, ClosingMark Title TX LLC, ClosingMark Title Agency LLC, ClosingMark Escrow CA, Inc., ClosingMark Home Loans, Inc. (f/k/a South Pacific Financial Corporation) and Übermortgage, Inc. The Parent may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
if (1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
Redesignation and (2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of delivered to the Issuer Trustee and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (William Lyon Homes)
Limitations on Designation of Unrestricted Subsidiaries. As of the Issue Date, the Issuer shall be deemed to have designated each of M/I Financial, LLC; M/I Title Agency Ltd.; TransOhio Residential Title Agency Ltd.; M/I Title, LLC; K-Tampa, LLC; and The M/I Homes Foundation as Unrestricted Subsidiaries. The Issuer may designate any additional Subsidiary (including including, without limitation, any newly formed Subsidiary acquired or newly acquired Subsidiary) of created by the Issuer or any Restricted Subsidiary after the Issue Date) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) at the time aggregate amount of and immediately after giving effect to such Designation, investments in all Unrestricted Subsidiaries shall not exceed 5% of Consolidated Tangible Assets (the Consolidated Leverage Test would be satisfied“Investment Basket”). No Subsidiary shall be Designated subject to a Designation as an “Unrestricted Subsidiary” (whether such Designation is on or after the Issue Date) unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Permitted Unrestricted Subsidiary Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, results (other than guarantees in each case, pursuant to Investments which are made in accordance with Section 4.07existence on the Issue Date); and
(43) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become a general partner of Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any such Restricted Subsidiary. If, at At any time, time any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by such Subsidiary as of such date. If, within 45 days after such date, (a) the Issuer has not redesignated such Unrestricted Subsidiary as a Restricted Subsidiary at and caused such time andRestricted Subsidiary to execute and deliver to the Trustee a supplemental indenture and a notation of guarantee in accordance with Section 4.10 and (b) after giving effect to such Redesignation and execution of a supplemental indenture and notation of guarantee, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.104.08, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary (including any Subsidiary that was deemed to be designated as an Unrestricted Subsidiary on the Issue Date) as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments Liens of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. If any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary in accordance with the preceding paragraphs, then the amount of any investments in such Unrestricted Subsidiary made on or after the date such Person became a Subsidiary shall be credited against the Investment Basket (up to a maximum amount of 5% of Consolidated Tangible Assets) after giving pro forma effect to the use of proceeds of the Notes. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors Directors, or the executive committee of the Issuer and an Officer’s Certificate Board of Directors, of the Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (M/I Homes, Inc.)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary of the Issuer (including any newly formed acquired or newly acquired formed Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
: (1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) (A) such Subsidiary has total assets of $1,000 or less or (B) the Issuer would be permitted to make, and shall be deemed to make, at the time of and immediately after giving effect to such Designation, (i) a Permitted Investment or (ii) an Investment pursuant to Section 4.04, in either case, in an amount (the Consolidated Leverage Test would be satisfied. No “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless on such Subsidiary:
date; (13) has no Indebtedness neither the Issuer nor any of its other Subsidiaries (other than Non-Recourse Debt and Unrestricted Subsidiaries) (A) provides any direct or indirect credit support for any Indebtedness of such Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness) or (B) is directly or indirectly liable for any Indebtedness of such Subsidiary other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, exceptthan, in each case, such Investments as are permitted pursuant to Investments which are made in accordance with Section 4.07;
4.04; (24) such Subsidiary is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply (A) are no less favorable to the Issuer or the Restricted Subsidiary than those that would be reasonably expected to be obtained at the time from Persons who are not Affiliates of the Issuer or such Restricted Subsidiary or (B) would be permitted as (i) an Affiliate Transaction under and in compliance with Section 4.09;
4.07, (3ii) an Asset Sale under and in compliance with Section 4.06, (iii) a Permitted Investment, or (iv) an Investment under and in compliance with Section 4.04; (5) such Subsidiary is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (aA) to subscribe for additional Equity Interests or (bB) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, such Investments as are permitted pursuant to Investments which are made in accordance with Section 4.074.04; and
and (46) will such Subsidiary has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries any Restricted Subsidiary.
(other than another Unrestricted Subsidiaryb) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any timetime after the Designation, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, set forth in Section 4.10(a) it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.03 or the Lien is not permitted under Section 4.104.11, the Issuer shall be in default of the applicable covenant. .
(c) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
if (1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
, (2) (A) the Issuer would be able to incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a), (B) the Consolidated Fixed Charge Coverage Ratio of the Issuer and the Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer and the Restricted Subsidiaries immediately prior to such Redesignation, or (C) the Indebtedness to Tangible Net Worth Ratio of the Issuer and the Restricted Subsidiaries would be equal to or less than such ratio immediately prior to such Redesignation, in each case on a pro forma basis taking into account such Redesignation; and (3) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(d) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Officers’ Certificate delivered to the Trustee certifying compliance with the foregoing provisions provisions. Such resolutions and Officers’ Certificate shall be delivered to the TrusteeTrustee within 45 days after the end of the fiscal quarter of the Issuer in which such Designation or Redesignation is made (or, in the case of a Designation or Redesignation made during the last fiscal quarter of the Issuer’s fiscal year, within 90 days after the end of such fiscal year).
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer Partnership may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Partnership as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Partnership would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to clause (a) of Section 4.11, in either case, in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Partnership’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer Partnership or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;are no less favorable to the Partnership or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates; and
(32) is a Person with respect to which neither the Issuer Partnership nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and.
(4c) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 or the Lien is not permitted under Section 4.104.14, the Issuer Partnership shall be in default of the applicable covenant. Section.
(d) The Issuer Partnership may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Partnership, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (Stonemor Partners Lp)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary of the Issuer to be an “Unrestricted Subsidiary” if (including 1) that designation would not cause a Default and (2) the Issuer concurrently designates, or has previously designated, such Restricted Subsidiary to be an Unrestricted Subsidiary pursuant to and in compliance with each syndicated Credit Facility. The Issuer may redesignate any newly formed or newly acquired Unrestricted Subsidiary to be a Restricted Subsidiary.
(b) Any designation of a Subsidiary of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and Subsidiary will be continuing at evidenced by delivery to the time Trustee of or immediately after giving effect to an Officer’s Certificate certifying that such Designation; and
(2) at the time of and immediately after giving effect to such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07;
(2) is not party to any agreement, contract, arrangement or understanding designation complied with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiarypreceding provision. If, at any time, any Unrestricted Subsidiary fails would fail to meet the preceding requirements as an definition of “Unrestricted Subsidiary, ,” it shall will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall will be deemed to be incurred by a Restricted Subsidiary at of the Issuer as of such time date and, if the Indebtedness is such Liens are not permitted to be incurred as of such date under Section 4.06 or the Lien is not permitted under Section 4.104.05, the Issuer shall will be in default of the applicable such covenant. .
(c) The Issuer may redesignate an at any time designate any Unrestricted Subsidiary as to be a Restricted Subsidiary (of the Issuer; provided that such designation will be deemed to be an incurrence of Liens by a “Redesignation”) Restricted Subsidiary of the Issuer of any outstanding Liens of such Unrestricted Subsidiary, and such designation will only if:
be permitted if (1) no Default shall have occurred such Liens are permitted under Section 4.05, and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments no Event of such Unrestricted Subsidiary outstanding immediately Default would be in existence following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trusteedesignation.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to the Consolidated Leverage Test would be satisfiedfirst paragraph of Section 4.08, in either case, in an amount (the “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Permitted Unrestricted Subsidiary Indebtedness;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are not materially less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Issuer or such Restricted Subsidiary;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support a pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become a general partner of any such Unrestricted Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.104.11, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer (other than the Co-Issuer) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.11, in either case, in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such Subsidiary. Restricted Payment permitted pursuant to Section 4.11.
(c) If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements of Section 4.19(a) and (b) as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 or the Lien is not permitted under the covenant described under Section 4.104.12, the Issuer shall be in default of the applicable covenant. The Issuer may not designate the Co-Issuer as an Unrestricted Subsidiary.
(d) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (Norcraft Capital Corp.)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer Company may designate any Subsidiary (of its Subsidiaries, including any newly formed acquired or newly acquired formed Subsidiary) of the Issuer , as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) at the time of and immediately after giving effect to such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07;
(2) the Company would be permitted to make, and shall be deemed to make, at the time of such Designation, (a) a Permitted Investment or (b) a Restricted Payment pursuant to Section 4.04, in either case, in an amount (the “Designation Amount”) equal to the Fair Market Value of the Company’s proportionate interest in such Subsidiary on such date.
(3) neither the Company nor any of its other Subsidiaries (other than Unrestricted Subsidiaries) (x) provides any direct or indirect credit support for any Indebtedness of such Subsidiary or (y) is directly or indirectly liable for any Indebtedness of such Subsidiary other than, in the case of each of (x) and (y), such Investments constitute Permitted Investments or are Restricted Payments pursuant to Section 4.04;
(4) the Subsidiary to be so designated and its Subsidiaries do not at the time of Designation own any Equity Interests or Indebtedness of, or own or hold any Lien with respect to, the Company or any other Restricted Subsidiary of the Company that is not a Subsidiary of the Subsidiary so designated on such date;
(5) such Subsidiary, at the time of Designation, is not party to any agreement, contract, arrangement or understanding with the Issuer Company or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply (x) are no less favorable to the Company or the Restricted Subsidiary than those that would be reasonably expected to be obtained at the time from Persons who are not Affiliates of the Company or such Restricted Subsidiary or (y) would be permitted as (a) an Affiliate Transaction under and in compliance with Section 4.094.07, (b) an Asset Sale under and in compliance with Section 4.06, (c) a Permitted Investment or (d) a Restricted Payment under and in compliance with Section 4.04;
(36) such Subsidiary is a Person with respect to which neither the Issuer Company nor any Restricted Subsidiary has any direct or indirect obligation (ax) to subscribe for additional Equity Interests of such Subsidiary or (by) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each casethe case of (x) and (y), pursuant to the extent such obligations constitute Permitted Investments which or are made Restricted Payments under and in accordance compliance with Section 4.074.04; and
(47) will such Subsidiary at the time of Designation has not become a guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any Restricted Subsidiary, except for any guarantee given solely to support the pledge by the Company or any Restricted Subsidiary of the Issuer or its other Subsidiaries (other than another Equity Interest of such Unrestricted Subsidiary) where , which guarantee is not recourse to the Issuer Company or such other Subsidiary will become any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.04. If, at any timetime after the Designation, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiaryset forth in Section 4.10(3) and Section 4.10(6), it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at as of such time and, if the Indebtedness is not permitted to be incurred under the covenant described under Section 4.06 4.03 or the Lien is not permitted under the covenant described under Section 4.104.11, the Issuer Company shall be in default of the applicable covenant. The Issuer Company may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
: (1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) (a) the Company would be able to incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a) or (b) either (i) the Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such Redesignation or (ii) the Indebtedness to Tangible Net Worth Ratio of the Company and its Restricted Subsidiaries would be lower than such ratio for the Company and its Restricted Subsidiaries immediately prior to such Redesignation, in each case on a pro forma basis taking into account such Redesignation; and (3) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer Company delivered to the Trustee and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (New Home Co Inc.)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.11(a), in either case, in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement ar rangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become a general partner of Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any such Restricted Subsidiary. .
(c) If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements of Sections 4.19(a) and (b) as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 or the Lien is not permitted under by Section 4.104.12, the Issuer shall be in default of the applicable covenant. Notwithstanding anything to the contrary, CPI shall not be designated an Unrestricted Subsidiary.
(d) The Issuer may redesignate designate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (Cpi Holdco Inc)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to the Consolidated Leverage Test would be satisfiedfirst paragraph of Section 4.08, in either case, in an amount (the “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Permitted Unrestricted Subsidiary Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Issuer or such Restricted Subsidiary;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.08. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.104.11, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (Meritage Homes CORP)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to the Consolidated Leverage Test would be satisfiedfirst paragraph of Section 4.08, in either case, in an amount (the “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date. Table of Contents -57- No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become a general partner of Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any such Restricted Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.104.11, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to the Consolidated Leverage Test would be satisfiedfirst paragraph of Section 4.13, in either case, in an amount (the “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless (i) the terms of the agreement, contract, arrangement or understanding comply with are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates or (ii) such agreement, contract, arrangement or understanding would be permitted under Section 4.094.15;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests In- terests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become a general partner of Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any such Restricted Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the such Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at as of such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.11 or the Lien is not permitted under Section 4.104.16, as the Issuer shall be in default of the applicable covenantcase may be. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer Company may designate after the Issue Date any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “"Unrestricted Subsidiary” " under this Indenture (a “"Designation”") ----------- only if:
(1i) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and;
(2ii) the Company would be permitted to make an Investment (other than a Permitted Investment) at the time of and immediately after giving effect Designation (assuming the effectiveness of such Designation) pursuant to the first paragraph of Section 10.9 in an amount (the "Designation Amount") ------------------ equal to the Fair Market Value of the Company's interest in such Subsidiary on such date calculated in accordance with GAAP; and
(iii) the Company would be permitted under the Indenture to incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 10.8 at the time of such Designation (assuming the effectiveness of such Designation). In the event of any such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary Company shall be Designated as deemed to have made an “Investment constituting a Restricted Payment pursuant to Section 10.9 for all purposes of this Indenture in the Designation Amount. The Company shall not, and shall not cause or permit any Restricted Subsidiary to, at any time (x) provide credit support for or subject any of its property or assets (other than the Capital Stock of any Unrestricted Subsidiary” unless ) to the satisfaction of, any Indebtedness of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Subsidiary:
Indebtedness), (1y) has no be directly or indirectly liable for any Indebtedness other than Non-Recourse Debt and other obligations arising by operation of lawany Unrestricted Subsidiary or (z) be 109 directly or indirectly liable for any Indebtedness which provides that the holder thereof may (upon notice, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant lapse of time or both) declare a default thereon or cause the payment thereof to Investments which are made in accordance be accelerated or payable prior to its final scheduled maturity upon the occurrence of a default with Section 4.07;
(2) is not party respect to any agreementIndebtedness of any Unrestricted Subsidiary (including any right to take enforcement action against such Unrestricted Subsidiary), contract, arrangement or understanding with except any non-recourse guarantee given solely to support the Issuer pledge by the Company or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels Capital Stock of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an . No Unrestricted Subsidiary shall at any time guarantee or otherwise provide credit support for purposes any obligation of this Indenture on the date that is 30 days after the Issuer Company or any Restricted Subsidiary has obtained knowledge Subsidiary, except as provided in the Bank Credit Agreement. All Subsidiaries of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary Unrestricted Subsidiaries shall automatically be deemed to be incurred by Unrestricted Subsidiaries.
(b) The Company may revoke any Designation of a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate as an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”"Revocation") only if:: ----------
(1i) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; andRevocation;
(2ii) all Liens, Liens and Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation Revocation would, if incurred or made at such timetime by a Restricted Subsidiary, have been permitted to be incurred or made for all purposes of this Indenture; and
(iii) any transaction (or series of related transactions) between such Subsidiary and any of its Affiliates that occurred on or after the Issue Date while such Subsidiary was an Unrestricted Subsidiary would be permitted by Section 10.11 as if such transaction (or series of related transactions) had occurred at the time of such Revocation; provided, however, that this clause -------- ------- (iii) shall not apply to the revocation of the Designation as an Unrestricted Subsidiary of an Unrestricted Subsidiary on the Issue Date. 110
(c) In the event the Company or a Restricted Subsidiary makes any Investment in any Person which was not previously a Subsidiary and such Person thereby becomes a Subsidiary, such Person shall automatically be an Unrestricted Subsidiary and the Company may designate such Subsidiary as a Restricted Subsidiary only if it meets the foregoing requirements of clauses (i) and (ii) of paragraph (b).
(d) All Designations and Redesignations Revocations must be evidenced by resolutions Board Resolutions of the Board of Directors of Company delivered to the Issuer and an Officer’s Certificate Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (FLN Finance Inc)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer (a) Borrower may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Borrower as an “Unrestricted Subsidiary” under this Indenture Agreement and the other Loan Documents (a “Designation”) only if:
(1i) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2ii) Borrower would be permitted to make, at the time of and immediately after giving effect to such Designation, (x) a Permitted Investment or (y) an Investment pursuant to Section 6.7, in either case, in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of Borrower’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1i) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2ii) is not party to any agreement, contract, arrangement or understanding with the Issuer Borrower or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to Borrower or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3iii) is a Person with respect to which neither the Issuer Borrower nor any Restricted Subsidiary has any direct or indirect obligation (ax) to subscribe for additional Equity Interests or (by) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4iv) will has not become a guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of Borrower or any Restricted Subsidiary, except for any guarantee given solely to support the pledge by Borrower or any Restricted Subsidiary of the Issuer or its other Subsidiaries (other than another Equity Interests of such Unrestricted Subsidiary) where the Issuer , which guarantee is not recourse to Borrower or such other Subsidiary will become a general partner of any such Restricted Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer Agreement or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), other Loan Document and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 6.5 or the Lien is not permitted under Section 4.106.10, the Issuer Borrower shall be in default of the applicable covenant. The Issuer .
(c) Borrower may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1i) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2ii) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. Agreement or any other Loan Document.
(d) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Borrower, delivered to Lender certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer Borrower may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Borrower as an “Unrestricted Subsidiary” under this Indenture Agreement (a “Designation”) only if:
(1) no Default or Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) either (A) the Subsidiary to be so Designated has total assets of $1,000 or less; or (B) the Borrower would be permitted to make, at the time of and immediately after giving effect to such Designation, (x) a Permitted Investment or (y) an Investment pursuant to Section 6.02, in either case, in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Borrower’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless if (a) such Subsidiary:
Subsidiary or any of its Subsidiaries owns (1i) has no Indebtedness any Equity Interests (other than Non-Recourse Debt and other obligations arising by operation Qualified Equity Interests) of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07;
the Borrower or (2ii) is not party to any agreement, contract, arrangement or understanding with the Issuer or Equity Interests of any Restricted Subsidiary unless the terms that is not a Subsidiary of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect Subsidiary to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests be so Designated or (b) to maintain is a Guarantor under the New Senior Notes or preserve the Person’s financial condition Revolving Facility Credit Agreement or to cause the Person to achieve any specified levels of operating results, except, Refinancing Indebtedness in each case, pursuant to Investments which are made in accordance with Section 4.07; andrespect thereof.
(4c) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), Agreement and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 6.01 or the Lien is not permitted under Section 4.106.05, the Issuer Borrower shall be in default of the applicable covenant. .
(d) The Issuer Borrower may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default or Event of Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. Agreement.
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Borrower, delivered to the Administrative Agent, certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. The Issuer Parent may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Parent (other than the Issuer) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Parent would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to the Consolidated Leverage Test would be satisfiedfirst paragraph of Section 4.08 above, in either case, in an amount (the “Designation Amount”) equal to the Fair Market Value of the Parent’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Permitted Unrestricted Subsidiary Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer Parent or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply (i) are no less favorable to the Parent or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Parent or such Restricted Subsidiary or (ii) would be permitted as (a) an Affiliate Transaction under and in compliance with Section 4.10, (b) an Asset Sale under and in compliance with Section 4.09, (c) a Permitted Investment or (d) an Investment under and in compliance with Section 4.08;
(3) is a Person with respect to which neither the Issuer Parent nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer Parent or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Restricted Subsidiary. If, at any timetime after the Designation, any Unrestricted Subsidiary fails to meet the requirements set forth in the preceding requirements as an Unrestricted Subsidiaryparagraph, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.104.11, the Issuer Parent shall be in default of the applicable covenant. Notwithstanding the foregoing, the Parent may Designate a Subsidiary as an Unrestricted Subsidiary without complying with the first two paragraphs of this Section 4.15 if (a) such Subsidiary is a Consolidated Joint Venture and (b) such Designation is made within 30 days of such Joint Venture becoming a Subsidiary. Any such Unrestricted Subsidiary shall, however, be required subsequent to such Designation to comply with the immediately preceding paragraph; provided that such Unrestricted Subsidiary shall not be deemed to be in violation of the requirements set forth in the second paragraph of this covenant to the extent that the Indebtedness, obligation, agreement or other arrangement that would otherwise violate such paragraph was in existence at the time such Joint Venture became a Subsidiary as in effect at such time. The Parent may not Designate the Issuer as an Unrestricted Subsidiary. As of the Issue Date, the Parent shall be deemed to have Designated Duxford Title Reinsurance Company, Cerro Plata Associates, LLC, 000 Xxxxx Xxxxx, XXX, Xxxx Waterfront, LLC and Nobar Water Company, as Unrestricted Subsidiaries. The Parent may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer Parent delivered to the Trustee and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (William Lyon Homes)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) at the time Issuer would be permitted to make an Investment in an amount (the “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date (and immediately after giving effect to such Designationin the case of any Designation occurring during a Suspension Period, the Consolidated Leverage Test would be satisfiedIssuer could make such Investment if such Suspension Period were not then in effect). No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Indebtedness;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.07. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.104.08, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (Ipsco Inc)
Limitations on Designation of Unrestricted Subsidiaries. As of the Issue Date, the Issuer shall be deemed to have designated each of M/I Financial, LLC; M/I Title Agency Ltd.; TransOhio Residential Title Agency Ltd.; Washington/Metro Residential Title Agency LLC; M/I Title, LLC; K-Tampa, LLC; and The M/I Homes Foundation as Unrestricted Subsidiaries. The Issuer may designate any additional Subsidiary (including including, without limitation, any newly formed Subsidiary acquired or newly acquired Subsidiary) of created by the Issuer or any Restricted Subsidiary after the Issue Date) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.08, in either case, in an amount (the Consolidated Leverage Test would be satisfied“Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated subject to a Designation as an “Unrestricted Subsidiary” (whether such Designation is on or after the Issue Date) unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Permitted Unrestricted Subsidiary Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Issuer or such Restricted Subsidiary unless such agreement, contract, arrangement or understanding is permitted under Section 4.094.10;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, results (other than guarantees in each case, pursuant to Investments which are made in accordance with Section 4.07existence on the Issue Date); and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of Restricted Payment permitted pursuant to Section 4.08. At any such Subsidiary. If, at any time, time any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by such Subsidiary as of such date. If, within 45 days after such date, (a) the Issuer has not redesignated such Unrestricted Subsidiary as a Restricted Subsidiary at and caused such time andRestricted Subsidiary to execute and deliver to the Trustee a supplemental indenture and a notation of guarantee in accordance with Section 4.13 and (b) after giving effect to such Redesignation and execution of a supplemental indenture and notation of guarantee, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.104.11, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary (including any Subsidiary that was deemed to be designated as an Unrestricted Subsidiary on the Issue Date) as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors Directors, or the executive committee of the Issuer and an Officer’s Certificate Board of Directors, of the Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (M/I Homes, Inc.)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer Company may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Company as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Company would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.11(a) above, in either case, in an amount (the Consolidated Leverage Test would be satisfied“Designation Amount”) equal to the Fair Market Value of the Company’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer Company or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Company or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer Company nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any Restricted Subsidiary, except for any guarantee given solely to support the pledge by the Company or any Restricted Subsidiary of the Issuer or its other Subsidiaries (other than another Equity Interests of such Unrestricted Subsidiary) where , which guarantee is not recourse to the Issuer Company or such other Subsidiary will become any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner Restricted Payment permitted pursuant to Section 4.11 of any such Subsidiarythis Indenture. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 or the Lien is not permitted under Section 4.10, 4.13 the Issuer Company shall be in default of the applicable covenant. The Issuer Company may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Company, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (Phi Inc)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer Parent may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Parent (other than the Company) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
if (1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
Designation and (2) the Parent would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.04, in either case, in an amount (the Consolidated Leverage Test would be satisfied“Designation Amount”) equal to the Fair Market Value of the Parent’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
unless: (1) has no Indebtedness neither the Company nor any of its other Subsidiaries (other than Non-Recourse Debt and Unrestricted Subsidiaries) (x) provides any direct or indirect credit support for any Indebtedness of such Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness) or (y) is directly or indirectly liable for any Indebtedness of such Subsidiary other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, exceptthan, in each case, such Investments as are permitted pursuant to Investments which are made in accordance with Section 4.07;
4.04; (2) such Subsidiary is not party to any agreement, contract, arrangement or understanding with the Issuer Parent or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply (x) are no less favorable to the Parent or the Restricted Subsidiary than those that would be reasonably expected to be obtained at the time from Persons who are not Affiliates of the Parent or such Restricted Subsidiary or (y) would be permitted as (a) an Affiliate Transaction under and in compliance with Section 4.09;
4.07, (b) an Asset Sale under and in compliance with Section 4.06, (c) a Permitted Investment or (d) an Investment under and in compliance with Section 4.04; (3) such Subsidiary is a Person with respect to which neither the Issuer Parent nor any Restricted Subsidiary has any direct or indirect obligation (ax) to subscribe for additional Equity Interests or (by) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
and (4) will such Subsidiary has not become a guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Parent or any Restricted Subsidiary, except for any guarantee given solely to support the pledge by the Parent or any Restricted Subsidiary of the Issuer or its other Subsidiaries (other than another Equity Interest of such Unrestricted Subsidiary) where , which guarantee is not recourse to the Issuer Parent or such other Subsidiary will become any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.04. If, at any timetime after the Designation, any Unrestricted Subsidiary fails to meet the requirements set forth in the preceding requirements as an Unrestricted Subsidiaryparagraph, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.03 or the Lien is not permitted under Section 4.104.12, the Issuer Parent shall be in default of the applicable covenant. The Issuer Parent may not Designate the Company as an Unrestricted Subsidiary. As of the Issue Date, the Parent shall be deemed to have Designated Duxford Title Reinsurance Company, Cerro Plata Associates, LLC, Silver Creek Preserve, Nobar Water Company, Horsethief Canyon Partners and Lyon Mission, LLC as Unrestricted Subsidiaries. The Parent may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
if (1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
Redesignation and (2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer Parent delivered to the Trustee and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (William Lyon Homes)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer Parent may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Parent (other than the Issuer) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Parent would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to the Consolidated Leverage Test would be satisfiedfirst paragraph of Section 4.08 above, in either case, in an amount (the “Designation Amount”) equal to the Fair Market Value of the Parent’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Permitted Unrestricted Subsidiary Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer Parent or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply (i) are no less favorable to the Parent or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Parent or such Restricted Subsidiary or (ii) would be permitted as (a) an Affiliate Transaction under and in compliance with Section 4.10, (b) an Asset Sale under and in compliance with Section 4.09, (c) a Permitted Investment or (d) an Investment under and in compliance with Section 4.08;
(3) is a Person with respect to which neither the Issuer Parent nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer Parent or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Restricted Subsidiary. If, at any timetime after the Designation, any Unrestricted Subsidiary fails to meet the requirements set forth in the preceding requirements as an Unrestricted Subsidiaryparagraph, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.104.11, the Issuer Parent shall be in default of the applicable covenant. Notwithstanding the foregoing, the Parent may Designate a Subsidiary as an Unrestricted Subsidiary without complying with the first two paragraphs of this Section 4.15 if (a) such Subsidiary is a Consolidated Joint Venture and (b) such Designation is made within 30 days of such Joint Venture becoming a Subsidiary. Any such Unrestricted Subsidiary shall, however, be required subsequent to such Designation to comply with the immediately preceding paragraph; provided that such Unrestricted Subsidiary shall not be deemed to be in violation of the requirements set forth in the second paragraph of this covenant to the extent that the Indebtedness, obligation, agreement or other arrangement that would otherwise violate such paragraph was in existence at the time such Joint Venture became a Subsidiary as in effect at such time. The Parent may not Designate the Issuer as an Unrestricted Subsidiary. As of the Issue Date, the Parent shall be deemed to have Designated Duxford Title Reinsurance Company, Cerro Plata Associates, LLC, 242 Cerro Plata, LLC and Fairway Farms, LLC as Unrestricted Subsidiaries. The Parent may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer Parent delivered to the Trustee and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (William Lyon Homes)
Limitations on Designation of Unrestricted Subsidiaries. The At any time prior to a Suspension Event (or after the Reversion Date with respect thereto), the Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) at the time of and immediately after giving effect to such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;; and
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after an Officer of the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trustee.
Appears in 1 contract
Samples: Indenture (HomeAdvisor, Inc.)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “"Unrestricted Subsidiary” " under this Indenture (a “Designation”"DESIGNATION") only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.09(a), in either case, in an amount (the Consolidated Leverage Test would be satisfied. "DESIGNATION AMOUNT") equal to the Fair Market Value of the Issuer's proportionate interest in such Subsidiary on such date, LESS, for this purpose, the amount of any intercompany loan from the Issuer or any Restricted Subsidiary to such Subsidiary that was treated as a Restricted Payment.
(b) No Subsidiary shall be Designated as an “"Unrestricted Subsidiary” " unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s 's financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where any Restricted Subsidiary in excess of $5.0 million in the aggregate, except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such Subsidiary. Restricted Payment permitted under Section 4.09.
(c) If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements of Section 4.17(a) and (b) as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.08 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. For purposes of clause (1) of Section 4.17(b), with respect to IVC Industries, Inc., "Non-Recourse Debt" shall be deemed to include Preferred Stock of IVC Industries, Inc. outstanding on the Issue Date.
(d) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”"REDESIGNATION") only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer (other than the Co-Issuer) as an “"Unrestricted Subsidiary” " under this Indenture (a “Designation”) only if"DESIGNATION"), provided that:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.12, in either case, in an amount (the Consolidated Leverage Test would be satisfied"DESIGNATION AMOUNT") equal to the Fair Market Value of the Issuer's proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “"Unrestricted Subsidiary” " unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt Permitted Unrestricted Subsidiary Debt, except to the extent that credit support of, or guarantee by, the Issuer or any Restricted Subsidiary may be incurred as Indebtedness and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07as an Investment under this Indenture;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;are no less favorable in any material respect to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Issuer or such Restricted Subsidiary; and
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s 's financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will unless the maximum amount of such obligation is treated as an Investment and such Investment is not become a Subsidiary prohibited under this Indenture at the time of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or giving of such other Subsidiary will become a general partner of any such Subsidiaryobligation. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Subsidiary, Liens on assets assets, agreements containing Restrictions, Affiliate Transactions and Investments of such Subsidiary shall be deemed to be incurred or made by a Restricted Subsidiary at as of such time date and, if the Indebtedness is not permitted to be incurred or made under Section 4.06 4.10 or the Lien is not permitted under Section 4.104.16 or the Investment is not permitted to be made under Section 4.12 or the agreement containing such Restrictions is not permitted under Section 4.14 or the Affiliate Transaction is not permitted under Section 4.15 or such Subsidiary is otherwise not in compliance with this Indenture, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate not designate the Co-Issuer as an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the TrusteeSubsidiary.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to the Consolidated Leverage Test would be satisfiedfirst paragraph of Section 4.12, in either case, in an amount (the “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of such Subsidiary;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will does not become a Subsidiary then guarantee or otherwise directly or indirectly provide credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become a general partner of Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any such Restricted Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the such Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 or the Lien is not permitted under Section 4.104.15, as the case may be, the Issuer shall be in default of the applicable covenantSection. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (Seitel Inc)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) at the time of and immediately after giving effect to such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will shall become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trustee.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary of the Issuer (including any newly formed acquired or newly acquired formed Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (i) a Permitted Investment or (ii) an Investment pursuant to Section 4.08(a), in either case, in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date, less, for this purpose, the amount of any intercompany loan from the Issuer or any Restricted Subsidiary to such Subsidiary that was treated as a Restricted Payment.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where any Restricted Subsidiary in excess of $25.0 million in the aggregate, except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such Subsidiary. Restricted Payment permitted pursuant to Section 4.08.
(c) If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements of Section 4.16(a) and (b) as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date)Indenture, and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at as of the date of such time cessation, and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.07 or the Lien is not permitted under Section 4.104.09, the Issuer shall be in default of the applicable covenant. .
(d) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by (1) resolutions of the Board of Directors of the Issuer and (2) an Officer’s Officers’ Certificate certifying compliance with the foregoing provisions provisions, in each case delivered to the Trustee.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer Company may designate after the Issue Date any Restricted Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “"Unrestricted Subsidiary” " under this Indenture (a “"Designation”") only if:
(1i) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and;
(2ii) the Company would be permitted to make an Investment (other than a Permitted Investment, except a Permitted Investment covered by clause (x) of the definition thereof) at the time of and immediately after giving effect Designation (assuming the effectiveness of such Designation) pursuant to the first paragraph of Section 10.9 in an amount (the "Designation Amount") equal to the Fair Market Value of the Company's interest in such Subsidiary on such date calculated in accordance with GAAP; and
(iii) the Company would be permitted under this Indenture to incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 10.8 at the time of such Designation (assuming the effectiveness of such Designation). In the event of any such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary Company shall be Designated as deemed to have made an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, Investment constituting a Restricted Payment pursuant to Investments which are made in accordance with Section 4.07;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe 10.9 for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for all purposes of this Indenture on in the date that is 30 days after the Issuer Designation Amount. The Company shall not, and shall not cause or permit any Restricted Subsidiary has obtained knowledge to, at any time (x) provide credit support for or subject any of such failure its property or assets (unless such failure has been cured by such date)other than the Capital Stock of any Unrestricted Subsidiary) to the satisfaction of, and any Indebtedness of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness), (y) be directly or indirectly liable for any Indebtedness of any Unrestricted Subsidiary or (z) be directly or indirectly liable for any Indebtedness which provides that the holder thereof may (upon notice, lapse of time or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its final scheduled maturity upon the occur- rence of a default with respect to any Indebtedness of any Unrestricted Subsidiary and (including any Liens on assets right to take enforcement action against such Unrestricted Subsidiary), except any non-recourse guarantee given solely to support the pledge by the Company or any 121 Restricted Subsidiary of such Subsidiary the Capital Stock of an Unrestricted Sub sidiary. All Subsidiaries of Unrestricted Subsidiaries shall automatically be deemed to be incurred by Unrestricted Subsidiaries.
(b) The Company may revoke any Designation of a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate as an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”"Revocation") only if:
(1i) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; Revocation, and
(2ii) all Liens, Liens and Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation Revocation would, if incurred or made at such timetime by a Restricted Subsidiary, have been permitted to be incurred or made for all purposes of this Indenture. .
(c) In the event the Company or a Restricted Subsidiary makes any Investment in any Person which was not previously a Subsidiary and such Person thereby becomes a Subsidiary, such Person shall automatically be an Unrestricted Subsidiary and the Company may designate such Subsidiary as a Restricted Subsidiary only if it meets the foregoing requirements of clauses (i) and (ii) of paragraph (b).
(d) All Designations and Redesignations Revocations must be evidenced by resolutions Board Resolutions of the Board of Directors of Company delivered to the Issuer and an Officer’s Certificate Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (United Rentals Inc /De)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer Company may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Company as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
if (1) no Default shall have occurred and be continuing at the time of or immediately after upon giving effect to such Designation; and
Designation and (2) the Company would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.03, in either case, in an amount (the Consolidated Leverage Test would be satisfied“Designation Amount”) equal to the Fair Market Value of the Company’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiaryunless:
(1) has no Indebtedness neither the Company nor any of its other Subsidiaries (other than Non-Recourse Debt and Unrestricted Subsidiaries) (x) provides any direct or indirect credit support for any Indebtedness of such Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness) or (y) is directly or indirectly liable for any Indebtedness of such Subsidiary other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, exceptthan, in each case, such Investments as are permitted pursuant to Investments which are made in accordance with Section 4.07;4.03;
(2) such Subsidiary is not party to any agreement, contract, arrangement or understanding with the Issuer Company or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply (x) are no less favorable to the Company or the Restricted Subsidiary than those that would be reasonably expected to be obtained at the time from Persons who are not Affiliates of the Company or such Restricted Subsidiary or (y) would be permitted as (a) an Affiliate Transaction under and in compliance with Section 4.09;4.06, (b) an Asset Sale under and in compliance with Section 4.05, (c) a Permitted Investment or (d) an Investment under and in compliance with Section 4.03;
(3) such Subsidiary is a Person with respect to which neither the Issuer Company nor any Restricted Subsidiary has any direct or indirect obligation (ax) to subscribe for additional Equity Interests or (by) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; results; and
(4) will such Subsidiary has not become a guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any Restricted Subsidiary, except for any guarantee given solely to support the pledge by the Company or any Restricted Subsidiary of the Issuer or its other Subsidiaries (other than another Equity Interest of such Unrestricted Subsidiary) where , which guarantee is not recourse to the Issuer Company or such other Subsidiary will become any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.03. If, at any timetime after the Designation, any Unrestricted Subsidiary fails to meet the requirements set forth in the preceding requirements as an Unrestricted Subsidiaryparagraph, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.02 or the Lien is not permitted under Section 4.10, the Issuer Company shall be in default of the applicable covenant. The Issuer Company may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
: (1) no Default shall have occurred and be continuing at the time of and after upon giving effect to such Redesignation; and
and (2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and Company delivered to the Trustee, together with an Officer’s Officers’ Certificate certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “"Unrestricted Subsidiary” " under this Indenture (a “"Designation”") only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) at the time Issuer would be permitted to make an Investment in an amount (the "Designation Amount") equal to the Fair Market Value of the Issuer's proportionate interest in such Subsidiary on such date (and immediately after giving effect to such Designationin the case of any Designation occurring during a Suspension Period, the Consolidated Leverage Test would be satisfiedIssuer could make such Investment if such Suspension Period were not then in effect). No Subsidiary shall be Designated as an “"Unrestricted Subsidiary” " unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Indebtedness;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s 's financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.07. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.104.08, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “"Redesignation”") only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (Ipsco Inc)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.08(a), in either case, in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become a general partner of Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any such Restricted Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.104.11, the Issuer shall be in default of the applicable covenant. .
(c) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer Partnership may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Partnership as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Partnership would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to clause (a) of Section 4.11, in either case, in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Partnership’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer Partnership or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;are no less favorable to the Partnership or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates; and
(32) is a Person with respect to which neither the Issuer Partnership nor any Restricted Subsidiary has have any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and.
(4c) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 or the Lien is not permitted under Section 4.104.14, the Issuer Partnership shall be in default of the applicable covenant. Section.
(d) The Issuer Partnership may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Partnership, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (Stonemor Partners Lp)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer Parent may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Parent (other than the Issuer) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Parent would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to the Consolidated Leverage Test would be satisfiedfirst paragraph of Section 4.08 above, in either case, in an amount (the “Designation Amount”) equal to the Fair Market Value of the Parent’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Permitted Unrestricted Subsidiary Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer Parent or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply (i) are no less favorable to the Parent or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Parent or such Restricted Subsidiary or (ii) would be permitted as (a) an Affiliate Transaction under and in compliance with Section 4.10, (b) an Asset Sale under and in compliance with Section 4.09, (c) a Permitted Investment or (d) an Investment under and in compliance with Section 4.08;
(3) is a Person with respect to which neither the Issuer Parent nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer Parent or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Restricted Subsidiary. If, at any timetime after the Designation, any Unrestricted Subsidiary fails to meet the requirements set forth in the preceding requirements as an Unrestricted Subsidiaryparagraph, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.104.11, the Issuer Parent shall be in default of the applicable covenant. Notwithstanding the foregoing, the Parent may Designate a Subsidiary as an Unrestricted Subsidiary without complying with the first two paragraphs of this Section 4.15 if
(a) such Subsidiary is a Consolidated Joint Venture and (b) such Designation is made within 30 days of such Joint Venture becoming a Subsidiary. Any such Unrestricted Subsidiary shall, however, be required subsequent to such Designation to comply with the immediately preceding paragraph; provided that such Unrestricted Subsidiary shall not be deemed to be in violation of the requirements set forth in the second paragraph of this covenant to the extent that the Indebtedness, obligation, agreement or other arrangement that would otherwise violate such paragraph was in existence at the time such Joint Venture became a Subsidiary as in effect at such time. The Parent may not Designate the Issuer as an Unrestricted Subsidiary. As of the Issue Date, the Parent shall be deemed to have Designated Duxford Title Reinsurance Company, Cerro Plata Associates, LLC, 000 Xxxxx Xxxxx, XXX, Xxxx Waterfront, LLC and Nobar Water Company, as Unrestricted Subsidiaries. The Parent may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer Parent delivered to the Trustee and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (William Lyon Homes)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “"Unrestricted Subsidiary” " under this Indenture (a “Designation”"DESIGNATION") only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.11(a), in either case, in an amount (the Consolidated Leverage Test would be satisfied. "DESIGNATION AMOUNT") equal to the Fair Market Value of the Issuer's proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “"Unrestricted Subsidiary” " unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s 's financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become a general partner of Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any such Restricted Subsidiary. .
(c) If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements of Section 4.19(a) and (b) as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 or the Lien is not permitted under the covenant described under Section 4.104.12, the Issuer shall be in default of the applicable covenant. .
(d) The Issuer may redesignate designate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”"REDESIGNATION") only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “"Unrestricted Subsidiary” " under this Indenture (a “Designation”"DESIGNATION") only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) either (A) the Subsidiary to be so Designated has total assets of $1,000 or less; or (B) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (x) a Permitted Investment or (y) an Investment pursuant to Section 4.11(a), in either case, in an amount (the Consolidated Leverage Test would be satisfied. "DESIGNATION AMOUNT") equal to the Fair Market Value of the Issuer's proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “"Unrestricted Subsidiary” unless " if such Subsidiary:
Subsidiary or any of its Subsidiaries owns (1i) has no Indebtedness any Equity Interests (other than Non-Recourse Debt and other obligations arising by operation Qualified Equity Interests) of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or (ii) any Equity Interests of any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) that is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries Subsidiary to be so Designated.
(other than another Unrestricted Subsidiaryc) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements of Section 4.19(a) and (b) as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 or the Lien is not permitted under Section 4.104.12, the Issuer shall be in default of the applicable covenant. section.
(d) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”"REDESIGNATION") only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee, certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (Ply Gem Industries Inc)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer (other than the Co-Issuer) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to the Consolidated Leverage Test would be satisfiedfirst paragraph of Section 4.07, in either case, in an amount (the “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Permitted Unrestricted Subsidiary Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Issuer or such Restricted Subsidiary;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.07. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Subsidiary, Liens on assets and Investments of such Subsidiary shall be deemed to be incurred or made by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred or made under Section 4.06 or the Lien is not permitted under Section 4.104.10 or the Investment is not permitted to be made under Section 4.07, the Issuer shall be in default of the applicable covenant. The Issuer may not designate the Co-Issuer as an Unrestricted Subsidiary. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (Ashton Woods USA L.L.C.)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer Company may designate any Restricted Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1i) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and;
(2ii) the Company would be permitted to make an Investment (other than a Permitted Investment, except a Permitted Investment covered by clause (xii) of the definition thereof) at the time of and immediately after giving effect Designation (assuming the effectiveness of such Designation) pursuant to the first paragraph of Section 10.09 in an amount (the “Designation Amount”) equal to the Fair Market Value of the Company’s interest in such Subsidiary on such date calculated in accordance with GAAP; and
(iii) the Company would be permitted under this Indenture to incur $1.00 of additional Indebtedness pursuant to Section 10.08(a) at the time of such Designation (assuming the effectiveness of such Designation). In the event of any such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary Company shall be Designated as deemed to have made an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, Investment constituting a Restricted Payment pursuant to Investments which are made in accordance with Section 4.07;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe 10.09 for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for all purposes of this Indenture on in the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge Designation Amount. All Subsidiaries of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary Unrestricted Subsidiaries shall automatically be deemed to be incurred by Unrestricted Subsidiaries.
(b) The Company may revoke any Designation of a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate as an Unrestricted Subsidiary as a Restricted Subsidiary (a “RedesignationRevocation”) only if:
(1i) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; Revocation, and
(2ii) all Liens, Liens and Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation Revocation would, if incurred or made at such timetime by a Restricted Subsidiary, have been permitted to be incurred or made for all purposes of this Indenture. .
(c) All Designations and Redesignations Revocations must be evidenced by resolutions Board Resolutions of the Board of Directors of Company delivered to the Issuer and an Officer’s Certificate Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (United Rentals Inc /De)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer (other than the Co-Issuer) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.11, in either case, in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (aA) to subscribe for additional Equity Interests or (bB) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Restricted Subsidiary, it shall thereafter cease except for any guarantee given solely to be an Unrestricted Subsidiary for purposes of this Indenture on support the date that is 30 days after pledge by the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments Equity Interests of such Unrestricted Subsidiary outstanding immediately following such Redesignation wouldSubsidiary, if incurred or made at such time, have been permitted which guarantee is not recourse to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer or any Restricted Subsidiary, and an Officer’s Certificate certifying compliance with the foregoing provisions delivered except to the Trusteeextent the amount thereof constitutes a Restricted Payment permitted pursuant to Section 4.11.
Appears in 1 contract
Samples: Indenture (Norcraft Holdings, L.P.)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer Parent may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Parent (other than the Company) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
if (1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
Designation and (2) the Parent would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.04, in either case, in an amount (the Consolidated Leverage Test would be satisfied“Designation Amount”) equal to the Fair Market Value of the Parent’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
unless: (1) has no Indebtedness neither the Company nor any of its other Subsidiaries (other than Non-Recourse Debt and Unrestricted Subsidiaries) (x) provides any direct or indirect credit support for any Indebtedness of such Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness) or (y) is directly or indirectly liable for any Indebtedness of such Subsidiary other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, exceptthan, in each case, such Investments as are permitted pursuant to Investments which are made in accordance with Section 4.07;
4.04; (2) such Subsidiary is not party to any agreement, contract, arrangement or understanding with the Issuer Parent or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply (x) are no less favorable to the Parent or the Restricted Subsidiary than those that would be reasonably expected to be obtained at the time from Persons who are not Affiliates of the Parent or such Restricted Subsidiary or (y) would be permitted as (a) an Affiliate Transaction under and in compliance with Section 4.09;
4.07, (b) an Asset Sale under and in compliance with Section 4.06, (c) a Permitted Investment or (d) an Investment under and in compliance with Section 4.04; (3) such Subsidiary is a Person with respect to which neither the Issuer Parent nor any Restricted Subsidiary has any direct or indirect obligation (ax) to subscribe for additional Equity Interests or (by) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
and (4) will such Subsidiary has not become a guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Parent or any Restricted Subsidiary, except for any guarantee given solely to support the pledge by the Parent or any Restricted Subsidiary of the Issuer or its other Subsidiaries (other than another Equity Interest of such Unrestricted Subsidiary) where , which guarantee is not recourse to the Issuer Parent or such other Subsidiary will become any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.04. If, at any timetime after the Designation, any Unrestricted Subsidiary fails to meet the requirements set forth in the preceding requirements as an Unrestricted Subsidiaryparagraph, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.03 or the Lien is not permitted under Section 4.104.12, the Issuer Parent shall be in default of the applicable covenant. The Issuer Parent may not Designate California Lyon as an Unrestricted Subsidiary. As of the Issue Date, the following subsidiaries of the Parent shall be deemed to be Unrestricted Subsidiaries of Parent: Designated Duxford Title Reinsurance Company, Cerro Plata Associates, LLC, Silver Creek Preserve, Nobar Water Company, Horsethief Canyon Partners, Lyon Mission, LLC and Escrow Issuer. The Parent may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
if (1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
Redesignation and (2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer Parent delivered to the Trustee and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (William Lyon Homes)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer Parent may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Parent (other than the Issuer) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1i) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2ii) the Parent would be permitted to make, at the time of and immediately after giving effect to such Designation, (1) a Permitted Investment or (2) an Investment pursuant to Section 4.07(a) above, in either case, in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Parent’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1i) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Permitted Unrestricted Subsidiary Debt;
(2ii) is not party to any agreement, contract, arrangement or understanding with the Issuer Parent or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply (1) are no less favorable to the Parent or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Parent or such Restricted Subsidiary or (2) would be permitted as (A) an Affiliate Transaction under and in compliance with Section 4.09, (B) an Asset Sale under and in compliance with Section 4.08, (C) a Permitted Investment or (D) an Investment under and in compliance with Section 4.07;
(3iii) is a Person with respect to which neither the Issuer Parent nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4iv) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer Parent or its other Subsidiaries any Restricted Subsidiary.
(other than another Unrestricted Subsidiaryc) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any timetime after the Designation, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiaryset forth in clause (b) of this Section 4.14, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer Parent shall be in default of the applicable covenant.
(d) Notwithstanding anything to the contrary in the foregoing clauses (a) through (c) of this Section 4.14, the Parent may Designate a Subsidiary as an Unrestricted Subsidiary without complying with clause (a) and (b) of this Section 4.14 if (1) such Subsidiary is a Consolidated Joint Venture and (2) such Designation is made within 30 days of such Joint Venture becoming a Subsidiary. Any such Unrestricted Subsidiary shall, however, be required subsequent to such Designation to comply with clause (c) of this Section 4.14; provided that such Unrestricted Subsidiary shall not be deemed to be in violation of the requirements set forth in clause (b) of this Section 4.14 to the extent that the Indebtedness, obligation, agreement or other arrangement that would otherwise violate such clause was in existence at the time such Joint Venture became a Subsidiary as in effect at such time.
(e) The Parent may not Designate the Issuer as an Unrestricted Subsidiary. As of the Issue Date, the Parent shall be deemed to have Designated Duxford Title Reinsurance Company, Cerro Plata Associates, LLC, 000 Xxxxx Xxxxx, XXX, Xxxxxx Xxxxx Preserve and Nobar Water Company, as Unrestricted Subsidiaries.
(f) The Parent may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1i) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2ii) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(g) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer Parent delivered to the Note Trustee and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. As of the Issue Date, the Issuer shall be deemed to have designated each of M/I Financial, LLC; M/I Title Agency Ltd.; TransOhio Residential Title Agency Ltd.; Washington/Metro Residential Title Agency, LLC; M/I Title, LLC; K-Tampa, LLC; and The M/I Homes Foundation as Unrestricted Subsidiaries. The Issuer may designate any additional Subsidiary (including including, without limitation, any newly formed Subsidiary acquired or newly acquired Subsidiary) of created by the Issuer or any Restricted Subsidiary after the Issue Date) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.08, in either case, in an amount (the Consolidated Leverage Test would be satisfied“Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated subject to a Designation as an “Unrestricted Subsidiary” (whether such Designation is on or after the Issue Date) unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Permitted Unrestricted Subsidiary Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Issuer or such Restricted Subsidiary unless such agreement, contract, arrangement or understanding is permitted on Section 4.094.10;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, results (other than guarantees in each case, pursuant to Investments which are made in accordance with Section 4.07existence on the Issue Date); and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of Restricted Payment permitted pursuant to Section 4.08. At any such Subsidiary. If, at any time, time any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by such Subsidiary as of such date. If, within ten (10) Business Days after such date, (a) the Issuer has not redesignated such Unrestricted Subsidiary as a Restricted Subsidiary at and caused such time andRestricted Subsidiary to execute and deliver to the Trustee a supplemental indenture and a notation of guarantee in accordance with Section 4.13 and (b) after giving effect to such Redesignation and execution of a supplemental indenture and notation of guarantee, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.104.11, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary (including any Subsidiary that was deemed to be designated as an Unrestricted Subsidiary on the Issue Date) as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors Directors, or the executive committee of the Issuer and an Officer’s Certificate Board of Directors, of the Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (M I Homes Inc)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to clause (a) of Section 4.11 in either case, in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results;
(4) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or any Restricted Subsidiary, exceptexcept for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such Unrestricted Subsidiary, in each case, pursuant which guarantee is not recourse to Investments which are made in accordance with Section 4.07the Issuer or any Restricted Subsidiary; and
(45) will does not become a Subsidiary of the Issuer or its other Subsidiaries own any Collateral.
(other than another Unrestricted Subsidiaryc) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 or the Lien is not permitted under Section 4.104.14, the Issuer shall be in default of the applicable covenant. Section.
(d) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to clause (a) of Section 4.11, in either case in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results;
(4) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or any Restricted Subsidiary, exceptexcept for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such Unrestricted Subsidiary, in each case, pursuant which guarantee is not recourse to Investments which are made in accordance with Section 4.07the Issuer or any Restricted Subsidiary; and
(45) will unless a Collateral Suspension is in effect, such Subsidiary does not become a Subsidiary of the Issuer or its other Subsidiaries own any Collateral.
(other than another Unrestricted Subsidiaryc) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 or the Lien is not permitted under Section 4.104.14, the Issuer shall be in default of the applicable covenant. Section.
(d) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (Hercules Offshore, Inc.)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer Parent may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Parent (other than the Borrower) as an “Unrestricted Subsidiary” under this Indenture Agreement (a “Designation”) only if:
if (1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
Designation and (2) the Parent would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 7.4, in either case, in an amount (the Consolidated Leverage Test would be satisfied“Designation Amount”) equal to the Fair Market Value of the Parent’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
unless: (1) has no Indebtedness neither the Borrower nor any of its other Subsidiaries (other than Non-Recourse Debt and Unrestricted Subsidiaries) (x) provides any direct or indirect credit support for any Indebtedness of such Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness) or (y) is directly or indirectly liable for any Indebtedness of such Subsidiary other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, exceptthan, in each case, such Investments as are permitted pursuant to Investments which are made in accordance with Section 4.07;
7.4; (2) such Subsidiary is not party to any agreement, contract, arrangement or understanding with the Issuer Parent or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3x) is a Person with respect are no less favorable to which neither the Issuer nor any Parent or the Restricted Subsidiary has any direct than those that would be reasonably expected to be obtained at the time from Persons who are not Affiliates of the Parent or indirect obligation such Restricted Subsidiary or (y) would be permitted as (a) to subscribe for additional Equity Interests or an Affiliate Transaction under and in compliance with Section 7.7, (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, an Asset Sale under and in each case, pursuant to Investments which are made in accordance compliance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trustee.7.6,
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “"Unrestricted Subsidiary” " under this Indenture (a “"Designation”") only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) at the time Issuer would be permitted to make an Investment in an amount (the "Designation Amount") equal to the Fair Market Value of the Issuer's proportionate interest in such Subsidiary on such date (and immediately after giving effect to such Designationin the case of any Designation occurring during a Suspension Period, the Consolidated Leverage Test would be satisfiedIssuer could make such Investment if such Suspension Period were not then in effect). No Subsidiary shall be Designated as an “"Unrestricted Subsidiary” " unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s 's financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.07. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under the covenant described under Section 4.06 or the Lien is not permitted under the covenant described under Section 4.10, 4.08 the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “"Redesignation”") only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (Massey Energy Co)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer Company may designate any Subsidiary of the Company (other than the Corporate Issuer), including any newly formed acquired or newly acquired formed Subsidiary) of the Issuer , as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) at the time of and immediately after giving effect to such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07;
(2) the Company would be permitted to make, and shall be deemed to make, at the time of such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.08 in either case, in an amount (the “Designation Amount”) equal to the Fair Market Value of the Company’s proportionate interest in such Subsidiary on such date;
(3) neither the Company nor any of its other Subsidiaries (other than Unrestricted Subsidiaries) (x) provides any direct or indirect credit support for any Indebtedness of such Subsidiary or (y) is directly or indirectly liable for any Indebtedness of such Subsidiary other than, in the case of each of (x) and (y), such Investments constitute Permitted Investments or are otherwise permitted pursuant to Section 4.08;
(4) the Subsidiary to be so designated and its Subsidiaries do not at the time of Designation own any Equity Interests or Indebtedness of, or own or hold any Lien with respect to, the Company or any other Restricted Subsidiary of the Company that is not a Subsidiary of the Subsidiary so designated;
(5) such Subsidiary is not party to any agreement, contract, arrangement or understanding with the Issuer Company or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply (x) are no less favorable to the Company or the Restricted Subsidiary than those that would be reasonably expected to be obtained at the time from Persons who are not Affiliates of the Company or such Restricted Subsidiary or (y) would be permitted as (a) an Affiliate Transaction under and in compliance with Section 4.094.14, (b) an Asset Sale under and in compliance with Section 4.16, (c) a Permitted Investment or (d) an Investment under and in compliance with Section 4.08;
(36) such Subsidiary is a Person with respect to which neither the Issuer Company nor any Restricted Subsidiary has any direct or indirect obligation (ax) to subscribe for additional Equity Interests of such Subsidiary or (by) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each casethe case of (x) and (y), to the extent such obligations constitute Permitted Investments or are permitted pursuant to Investments which are made in accordance with Section 4.074.08; and
(47) will such Subsidiary has not become a guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any Restricted Subsidiary, except for any guarantee given solely to support the pledge by the Company or any Restricted Subsidiary of the Issuer or its other Subsidiaries (other than another Equity Interest of such Unrestricted Subsidiary) where , which guarantee is not recourse to the Issuer Company or such other Subsidiary will become any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.08. If, at any timetime after the Designation, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiaryset forth in this Section 4.13(a), it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at as of such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.09 or the Lien is not permitted under Section 4.10, the Issuer Company shall be in default of the applicable covenant. As of the Issue Date, the Company shall be deemed to have Designated Reliant Structural Warranty Insurance Company, Inc. as an Unrestricted Subsidiary.
(b) The Issuer Company may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation;
(a) the Company would be able to incur at least $1.00 of additional Indebtedness pursuant to Section 4.09(a) or (b) either (i) the Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such Redesignation or (ii) the Indebtedness to Tangible Net Worth Ratio of the Company and its Restricted Subsidiaries would be lower than such ratio for the Company and its Restricted Subsidiaries immediately prior to such Redesignation, in each case on a pro forma basis taking into account such Redesignation; and
(23) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(c) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer Company delivered to the Trustee and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. The Issuer Company may designate any Subsidiary (of its Subsidiaries, including any newly formed acquired or newly acquired formed Subsidiary) of the Issuer , as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) at the time of and immediately after giving effect to such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07;
(2) the Company would be permitted to make, and shall be deemed to make, at the time of such Designation, (a) a Permitted Investment or (b) a Restricted Payment pursuant to Section 4.04, in either case, in an amount (the “Designation Amount”) equal to the Fair Market Value of the Company’s proportionate interest in such Subsidiary on such date;
(3) neither the Company nor any of its other Subsidiaries (other than Unrestricted Subsidiaries) (x) provides any direct or indirect credit support for any Indebtedness of such Subsidiary or (y) is directly or indirectly liable for any Indebtedness of such Subsidiary other than, in the case of each of (x) and (y), such Investments that constitute Permitted Investments or are Restricted Payments under and in compliance with Section 4.04;
(4) the Subsidiary to be so designated and its Subsidiaries do not at the time of Designation own any Equity Interests or Indebtedness of, or own or hold any Lien with respect to, the Company or any other Restricted Subsidiary of the Company that is not a Subsidiary of the Subsidiary so designated on such date;
(5) such Subsidiary, at the time of Designation, is not party to any agreement, contract, arrangement or understanding with the Issuer Company or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply (x) are no less favorable to the Company or the Restricted Subsidiary than those that would be reasonably expected to be obtained at the time from Persons who are not Affiliates of the Company or such Restricted Subsidiary or (y) would be permitted as (a) an Affiliate Transaction under and in compliance with Section 4.094.07, (b) an Asset Sale under and in compliance with Section 4.06, (c) a Permitted Investment or (d) a Restricted Payment under and in compliance with Section 4.04;
(36) such Subsidiary is a Person with respect to which neither the Issuer Company nor any Restricted Subsidiary has any direct or indirect obligation (ax) to subscribe for additional Equity Interests of such Subsidiary or (by) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each casethe case of (x) and (y), pursuant to the extent such obligations constitute Permitted Investments which or are made Restricted Payments under and in accordance compliance with Section 4.074.04; and
(47) will such Subsidiary at the time of Designation has not become a guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any Restricted Subsidiary, except for any guarantee given solely to support the pledge by the Company or any Restricted Subsidiary of the Issuer or its other Subsidiaries (other than another Equity Interest of such Unrestricted Subsidiary) where , which guarantee is not recourse to the Issuer Company or such other Subsidiary will become any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.04. If, at any timetime after the Designation, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiaryset forth in Section 4.10(3) and Section 4.10(6), it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at as of such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.03 or the Lien is not permitted under Section 4.104.11, the Issuer Company shall be in default of the applicable covenant. The Issuer Company may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
: (1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) (a) the Company would be able to incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a) or (b) either (i) the Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such Redesignation or (ii) the Indebtedness to Tangible Net Worth Ratio of the Company and its Restricted Subsidiaries would be lower than such ratio for the Company and its Restricted Subsidiaries immediately prior to such Redesignation, in each case on a pro forma basis taking into account such Redesignation; and (3) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer Company delivered to the Trustee and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (New Home Co Inc.)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer Parent may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Parent (other than the Company) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
if (1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
Designation and (2) the Parent would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.04, in either case, in an amount (the Consolidated Leverage Test would be satisfied“Designation Amount”) equal to the Fair Market Value of the Parent’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
unless: (1) has no Indebtedness neither the Company nor any of its other Subsidiaries (other than Non-Recourse Debt and Unrestricted Subsidiaries) (x) provides any direct or indirect credit support for any Indebtedness of such Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness) or (y) is directly or indirectly liable for any Indebtedness of such Subsidiary other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, exceptthan, in each case, such Investments as are permitted pursuant to Investments which are made in accordance with Section 4.07;
4.04; (2) such Subsidiary is not party to any agreement, contract, arrangement or understanding with the Issuer Parent or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply (x) are no less favorable to the Parent or the Restricted Subsidiary than those that would be reasonably expected to be obtained at the time from Persons who are not Affiliates of the Parent or such Restricted Subsidiary or (y) would be permitted as (a) an Affiliate Transaction under and in compliance with Section 4.09;
4.07, (b) an Asset Sale under and in compliance with Section 4.06, (c) a Permitted Investment or (d) an Investment under and in compliance with Section 4.04; (3) such Subsidiary is a Person with respect to which neither the Issuer Parent nor any Restricted Subsidiary has any direct or indirect obligation (ax) to subscribe for additional Equity Interests or (by) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
and (4) will such Subsidiary has not become a guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Parent or any Restricted Subsidiary, except for any guarantee given solely to support the pledge by the Parent or any Restricted Subsidiary of the Issuer or its other Subsidiaries (other than another Equity Interest of such Unrestricted Subsidiary) where , which guarantee is not recourse to the Issuer Parent or such other Subsidiary will become any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.04. If, at any timetime after the Designation, any Unrestricted Subsidiary fails to meet the requirements set forth in the preceding requirements as an Unrestricted Subsidiaryparagraph, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.03 or the Lien is not permitted under Section 4.104.12, the Issuer Parent shall be in default of the applicable covenant. The Issuer Parent may not Designate the Company as an Unrestricted Subsidiary. As of the Issue Date, the following subsidiaries of the Parent shall be deemed to be Unrestricted Subsidiaries of Parent: Designated Duxford Title Reinsurance Company, Cerro Plata Associates, LLC, Silver Creek Preserve, Nobar Water Company and Horsethief Canyon Partners. The Parent may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
if (1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
Redesignation and (2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer Parent delivered to the Trustee and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (William Lyon Homes)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer Company may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Company as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
if (1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
Designation and (2) the Company would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.09, in either case, in an amount (the Consolidated Leverage Test would be satisfied“Designation Amount”) equal to the Fair Market Value of the Company’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiaryunless:
(1) has no Indebtedness neither the Company nor any of its other Subsidiaries (other than Non-Recourse Debt and Unrestricted Subsidiaries) (x) provides any direct or indirect credit support for any Indebtedness of such Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness) or (y) is directly or indirectly liable for any Indebtedness of such Subsidiary other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, exceptthan, in each case, such Investments as are permitted pursuant to Investments which are made in accordance with Section 4.074.09;
(2) such Subsidiary is not party to any agreement, contract, arrangement or understanding with the Issuer Company or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply (x) are no less favorable to the Company or the Restricted Subsidiary than those that would be reasonably expected to be obtained at the time from Persons who are not Affiliates of the Company or such Restricted Subsidiary or (y) would be permitted as (a) an Affiliate Transaction under and in compliance with Section 4.12, (b) an Asset Sale under and in compliance with Section 4.11, (c) a Permitted Investment or (d) an Investment under and in compliance with Section 4.09;
(3) such Subsidiary is a Person with respect to which neither the Issuer Company nor any Restricted Subsidiary has any direct or indirect obligation (ax) to subscribe for additional Equity Interests or (by) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will such Subsidiary has not become a guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any Restricted Subsidiary, except for any guarantee given solely to support the pledge by the Company or any Restricted Subsidiary of the Issuer or its other Subsidiaries (other than another Equity Interest of such Unrestricted Subsidiary) where , which guarantee is not recourse to the Issuer Company or such other Subsidiary will become any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.09. If, at any timetime after the Designation, any Unrestricted Subsidiary fails to meet the requirements set forth in the preceding requirements as an Unrestricted Subsidiaryparagraph, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.08 or the Lien is not permitted under Section 4.104.16, the Issuer Company shall be in default of the applicable covenant. The Issuer Company may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
if (1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
Redesignation and (2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and Company delivered to the Trustee, together with an Officer’s Officers’ Certificate certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “"Unrestricted Subsidiary” " under this Indenture (a “"Designation”") only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to the Consolidated Leverage Test would be satisfiedfirst paragraph of Section 4.08, in either case, in an amount (the "Designation Amount") equal to the Fair Market Value of the Issuer's proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “"Unrestricted Subsidiary” " unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Permitted Unrestricted Subsidiary Debt;
(2) is not party to any agreement, contracttract, arrangement or understanding with are no less favorable to the Issuer or any the Restricted Subsidiary unless than those that might be obtained at the terms time from Persons who are not Affiliates of the agreement, contract, arrangement Issuer or understanding comply with Section 4.09such Restricted Subsidiary;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s 's financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.08. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.104.11, the Issuer shall be in default of the applicable covenant. As of the Issue Date, the Issuer shall be deemed to have Designated Texas Home Mortgage Company as an Unrestricted Subsidiary. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “"Redesignation”") only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trustee.provisions. 71 -64-
Appears in 1 contract
Samples: Indenture (Meritage Corp)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) either (A) the Subsidiary to be so Designated has total assets of $1,000 or less; or (B) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (x) a Permitted Investment or (y) an Investment pursuant to Section 4.11(a), in either case, in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless if such Subsidiary:
Subsidiary or any of its Subsidiaries owns (1i) has no Indebtedness any Equity Interests (other than Non-Recourse Debt and other obligations arising by operation Qualified Equity Interests) of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or (ii) any Equity Interests of any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) that is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries Subsidiary to be so Designated.
(other than another Unrestricted Subsidiaryc) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements of Section 4.19(a) and (b) as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 or the Lien is not permitted under Section 4.104.12, the Issuer shall be in default of the applicable covenant. section.
(d) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee, certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (Ply Gem Holdings Inc)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer Starz may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Starz as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) at the time of and immediately after giving effect to such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer Starz or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding under standing comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer Starz nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will is not become a Subsidiary of the Issuer Starz or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer Starz or such other Subsidiary will become is a general partner of any such Subsidiary. Notwithstanding the foregoing, Starz Finance may not be designated as an Unrestricted Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture In denture on the date that is 30 days after the Issuer Starz or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted permit xxx under Section 4.10, the Issuer Starz shall be in default of the applicable covenant. The Issuer Starz may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding out standing immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer Starz and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trustee.
Appears in 1 contract
Samples: Indenture (Starz, LLC)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a ““ Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) either (A) the Subsidiary to be so Designated has total assets of $1,000 or less; or (B) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (x) a Permitted Investment or (y) an Investment pursuant to Section 4.11(a), in either case, in an amount (the Consolidated Leverage Test would be satisfied. “ Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless if such Subsidiary:
Subsidiary or any of its Subsidiaries owns (1i) has no Indebtedness any Equity Interests (other than Non-Recourse Debt and other obligations arising by operation Qualified Equity Interests) of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or (ii) any Equity Interests of any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) that is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries Subsidiary to be so Designated.
(other than another Unrestricted Subsidiaryc) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements of Section 4.19(a) and (b) as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 or the Lien is not permitted under Section 4.104.12, the Issuer shall be in default of the applicable covenant. section.
(d) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a ““ Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee, certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (Ply Gem Holdings Inc)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer Company may designate after the Issue Date any Restricted Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “"Unrestricted Subsidiary” " under this Indenture (a “"Designation”") only if:
(1i) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and;
(2ii) the Company would be permitted to make an Investment (other than a Permitted Investment, except a Permitted Investment covered by clause (xii) of the definition thereof) at the time of and immediately after giving effect Designation (assuming the effectiveness of such Designation) pursuant to the first paragraph of Section 10.09 in an amount (the "Designation Amount") equal to the Fair Market Value of the Company's interest in such Subsidiary on such date calculated in accordance with GAAP; and
(iii) the Company would be permitted under this Indenture to incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 10.08 at the time of such Designation (assuming the effectiveness of such Designation). In the event of any such Designation, the Consolidated Leverage Test would be satisfied. No Subsidiary Company shall be Designated as deemed to have made an “Investment constituting a Restricted Payment pursuant to Section 10.09 for all purposes of this Indenture in the Designation Amount. The Company shall not, and shall not cause or permit any Restricted Subsidiary to, at any time (x) provide credit support for or subject any of its property or assets (other than the Capital Stock of any Unrestricted Subsidiary” unless ) to the satisfaction of, any Indebtedness of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Subsidiary:
Indebtedness), (1y) has no be directly or indirectly liable for any Indebtedness other than Non-Recourse Debt and other obligations arising by operation of lawany Unrestricted Subsidiary or (z) be directly or indirectly liable for any Indebtedness which provides that the holder thereof may (upon notice, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant lapse of time or both) declare a default thereon or cause the payment thereof to Investments which are made in accordance be accelerated or payable prior to its final scheduled maturity upon the occurrence of a default with Section 4.07;
(2) is not party respect to any agreementIndebtedness of any Unrestricted Subsidiary (including any right to take enforcement action against such Unrestricted Subsidiary), contract, arrangement or understanding with except any non-recourse guarantee given solely to support the Issuer pledge by the Company or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels Capital Stock of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it . All Subsidiaries of Unrestricted Subsidiaries shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall automatically be deemed to be incurred by Unrestricted Subsidiaries.
(b) The Company may revoke any Designation of a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate as an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”"Revocation") only if:
(1i) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; Revocation, and
(2ii) all Liens, Liens and Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation Revocation would, if incurred or made at such timetime by a Restricted Subsidiary, have been permitted to be incurred or made for all purposes of this Indenture. .
(c) All Designations and Redesignations Revocations must be evidenced by resolutions Board Resolutions of the Board of Directors of Company delivered to the Issuer and an Officer’s Certificate Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary of the Issuer (including any newly formed acquired or newly acquired formed Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
: (1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) (A) such Subsidiary has total assets of $1,000 or less or (B) the Issuer would be permitted to make, and shall be deemed to make, at the time of and immediately after giving effect to such Designation, (i) a Permitted Investment or (ii) an Investment pursuant to Section 4.04, in either case, in an amount (the Consolidated Leverage Test would be satisfied. No “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless on such Subsidiary:
date; (13) has no Indebtedness neither the Issuer nor any of its other Subsidiaries (other than Non-Recourse Debt and Unrestricted Subsidiaries) (A) provides any direct or indirect credit support for any Indebtedness of such Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness) or (B) is directly or indirectly liable for any Indebtedness of such Subsidiary other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, exceptthan, in each case, such Investments as are permitted pursuant to Investments which are made in accordance with Section 4.07;
4.04; (24) such Subsidiary is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply (A) are no less favorable to the Issuer or the Restricted Subsidiary than those that would be reasonably expected to be obtained at the time from Persons who are not Affiliates of the Issuer or such Restricted Subsidiary or (B) would be permitted as (i) an Affiliate Transaction under and in compliance with Section 4.09;
4.07, (3ii) an Asset Sale under and in compliance with Section 4.06, (iii) a Permitted Investment, or (iv) an Investment under and in compliance with Section 4.04; (5) such Subsidiary is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (aA) to subscribe for additional Equity Interests or (bB) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, such Investments as are permitted pursuant to Investments which are made in accordance with Section 4.074.04; and
and (46) will such Subsidiary has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries any Restricted Subsidiary.
(other than another Unrestricted Subsidiaryb) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any timetime after the Designation, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, set forth in Section 4.10(a) it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.03 or the Lien is not permitted under Section 4.104.11, the Issuer shall be in default of the applicable covenant. .
(c) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
if (1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
, (2) (A) the Issuer would be able to incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a), (B) the Consolidated Fixed Charge Coverage Ratio of the Issuer and the Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer and the Restricted Subsidiaries immediately prior to such Redesignation, or (C) the Indebtedness to Tangible Net Worth Ratio of the Issuer and the Restricted Subsidiaries would be equal to or less than such ratio immediately prior to such Redesignation, in each case on a pro forma basis taking into account such Redesignation; and (3) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(d) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Officers’ Certificate delivered to the Trustee certifying compliance with the foregoing provisions provisions. Such resolutions and Officers’ Certificate shall be delivered to the TrusteeTrustee within 45 days after the end of the fiscal quarter of the Issuer in which such Designation or Redesignation is made (or, in the case of a Designation or Redesignation made during the last fiscal quarter of the Issuer’s fiscal year, within 90 days after the end of such fiscal year).
(e) Notwithstanding the foregoing, the following are Unrestricted Subsidiaries on the Issue Date: (1) Inspire Home Loans Inc., (2) Parkway Title, LLC, (3) Parkway Financial Group, LLC and (4) IHL Home Insurance Agency, LLC.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Supplemental Indenture (a “Designation”) only if:
(1i) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2ii) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant Section 4.04 above, in either case, in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” Subsidiary unless such Subsidiary:
(1i) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2ii) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3iii) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4iv) will has not become a Subsidiary guaranteed any Indebtedness of the Issuer or its other Subsidiaries any Restricted Subsidiary, except for (other than another Unrestricted Subsidiarya) where any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary will become or (b) a general partner of any Note Guarantee that shall be released pursuant to this Supplemental Indenture upon such SubsidiaryDesignation. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Supplemental Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.03 or the Lien is not permitted under Section 4.104.07, the Issuer shall be in default of the applicable covenant. .
(c) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1i) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2ii) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Supplemental Indenture. .
(d) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: First Supplemental Indenture (ExamWorks Group, Inc.)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer Parent may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Parent (other than the Company) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
if (1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
Designation and (2) the Parent would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.04, in either case, in an amount (the Consolidated Leverage Test would be satisfied“Designation Amount”) equal to the Fair Market Value of the Parent’s proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
unless: (1) has no Indebtedness neither the Company nor any of its other Subsidiaries (other than Non-Recourse Debt and Unrestricted Subsidiaries) (x) provides any direct or indirect credit support for any Indebtedness of such Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness) or (y) is directly or indirectly liable for any Indebtedness of such Subsidiary other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, exceptthan, in each case, such Investments as are permitted pursuant to Investments which are made in accordance with Section 4.07;
4.04; (2) such Subsidiary is not party to any agreement, contract, arrangement or understanding with the Issuer Parent or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply (x) are no less favorable to the Parent or the Restricted Subsidiary than those that would be reasonably expected to be obtained at the time from Persons who are not Affiliates of the Parent or such Restricted Subsidiary or (y) would be permitted as (a) an Affiliate Transaction under and in compliance with Section 4.09;
4.07, (b) an Asset Sale under and in compliance with Section 4.06, (c) a Permitted Investment or (d) an Investment under and in compliance with Section 4.04; (3) such Subsidiary is a Person with respect to which neither the Issuer Parent nor any Restricted Subsidiary has any direct or indirect obligation (ax) to subscribe for additional Equity Interests or (by) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
and (4) will such Subsidiary has not become a guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Parent or any Restricted Subsidiary, except for any guarantee given solely to support the pledge by the Parent or any Restricted Subsidiary of the Issuer or its other Subsidiaries (other than another Equity Interest of such Unrestricted Subsidiary) where , which guarantee is not recourse to the Issuer Parent or such other Subsidiary will become any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.04. If, at any timetime after the Designation, any Unrestricted Subsidiary fails to meet the requirements set forth in the preceding requirements as an Unrestricted Subsidiaryparagraph, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.03 or the Lien is not permitted under Section 4.104.11, the Issuer Parent shall be in default of the applicable covenant. The Issuer Parent may not Designate the Company as an Unrestricted Subsidiary. As of the Issue Date, the Parent shall be deemed to have Designated Duxford Title Reinsurance Company, Cerro Plata Associates, LLC, Silver Creek Preserve and Nobar Water Company as Unrestricted Subsidiaries. The Parent may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
if (1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
Redesignation and (2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer Parent delivered to the Trustee and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (William Lyon Homes)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, an Investment in an amount (the Consolidated Leverage Test would be satisfied. “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary, taken as a whole, than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become a general partner of Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any such Restricted Subsidiary. .
(c) If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements of Section 4.19(a) and (b) as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at as of such time date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 or the Lien is not permitted under the covenant described under Section 4.104.12, the Issuer shall be in default of the applicable covenant. .
(d) The Issuer may redesignate designate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (CPI International, Inc.)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) at the time Issuer would be permitted to make an Investment in an amount (the “Designation Amount”) equal to the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary on such date (and immediately after giving effect to such Designationin the case of any Designation occurring during a Suspension Period, the Consolidated Leverage Test would be satisfiedIssuer could make such Investment if such Suspension Period were not then in effect). No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.07. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under the covenant described under Section 4.06 or the Lien is not permitted under the covenant described under Section 4.10, 4.08 the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (Massey Energy Co)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer as an “"Unrestricted Subsidiary” " under this Indenture (a “"Designation”") only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to the Consolidated Leverage Test would be satisfiedfirst paragraph of Section 4.08, in either case, in an amount (the "Designation Amount") equal to the Fair Market Value of the Issuer's proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “"Unrestricted Subsidiary” " unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Permitted Unrestricted Subsidiary Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Issuer or such Restricted Subsidiary;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s 's financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.08. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.104.11, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “"Redesignation”") only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (Matria Healthcare Inc)
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer (other than the Co-Issuer) as an “"Unrestricted Subsidiary” " under this Indenture (a “"Designation”") only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.11, in either case, in an amount (the Consolidated Leverage Test would be satisfied. "Designation Amount") equal to the Fair Market Value of the Issuer's proportionate interest in such Subsidiary on such date.
(b) No Subsidiary shall be Designated as an “"Unrestricted Subsidiary” " unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s 's financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such Subsidiary. Restricted Payment permitted pursuant to Section 4.11.
(c) If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements of Section 4.19(a) and (b) as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred under Section 4.06 4.10 or the Lien is not permitted under the covenant described under Section 4.104.12, the Issuer shall be in default of the applicable covenant. The Issuer may not designate the Co-Issuer as an Unrestricted Subsidiary.
(d) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “"Redesignation”") only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. .
(e) All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Samples: Indenture (Norcraft Companies Lp)
Limitations on Designation of Unrestricted Subsidiaries. The Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer (other than the Co-Issuer) as an “"Unrestricted Subsidiary” " under this Indenture (a “"Designation”") only if:
(1) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of and immediately after giving effect to such Designation, (a) a Permitted Investment or (b) an Investment pursuant to the Consolidated Leverage Test would be satisfiedfirst paragraph of Section 4.08, in either case, in an amount (the "Designation Amount") equal to the Fair Market Value of the Issuer's proportionate interest in such Subsidiary on such date. No Subsidiary shall be Designated as an “"Unrestricted Subsidiary” " unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07Permitted Unrestricted Subsidiary Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09are no less favorable to the Issuer or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Issuer or such Restricted Subsidiary;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s 's financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will has not become a Subsidiary guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or its other Subsidiaries (other than another Unrestricted any Restricted Subsidiary) where , except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such other Subsidiary will become Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except to the extent the amount thereof constitutes a general partner of any such SubsidiaryRestricted Payment permitted pursuant to Section 4.08. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge of such failure (unless such failure has been cured by such date), and any Indebtedness of the Subsidiary and any Subsidiary, Liens on assets and Investments of such Subsidiary shall be deemed to be incurred or made by a Restricted Subsidiary at such time as of the date and, if the Indebtedness is not permitted to be incurred or made under Section 4.06 or the Lien is not permitted under Section 4.104.11 or the Investment is not permitted to be made under Section 4.08, the Issuer shall be in default of the applicable covenant. The Issuer may not designate the Co-Issuer as an Unrestricted Subsidiary. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “"Redesignation”") only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate Issuer, delivered to the Trustee certifying compliance with the foregoing provisions delivered to the Trusteeprovisions.
Appears in 1 contract
Limitations on Designation of Unrestricted Subsidiaries. (a) The Issuer may Company may, pursuant to resolution of its Board of Directors, designate any Subsidiary (including any newly formed or newly acquired Subsidiary) of the Issuer Company as an “"Unrestricted Subsidiary” " under this Indenture (a “"Designation”") only if:
(1i) no Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; and;
(2ii) the Company would be permitted under this Indenture to make an Investment at the time of such Designation (assuming the effectiveness of such Designation) in an amount (the "Designation Amount") equal to the Fair Market Value of the Capital Stock of such Subsidiary on such date;
(iii) the Company would be permitted under this Indenture to incur $1.00 of additional Indebtedness pursuant to Section 1008(a) at the time of Designation (assuming the effectiveness of such Designation);
(iv) with respect to the Subsidiary to be designated an Unrestricted Subsidiary, each of the Company and immediately its Subsidiaries, other than the Subsidiary to be designated an Unrestricted Subsidiary, is in compliance with the provisions of clauses (x), (y) and (z) of the next following clause (v) as if such Subsidiary to be so designated had been and is an Unrestricted Subsidiary for all purposes of such clauses, at the time of, and after giving effect to, such Designation (assuming the effectiveness of such Designation); and
(v) the Subsidiary to be designated an Unrestricted Subsidiary, or any Subsidiary thereof, owns no Capital Stock or Indebtedness of, owes no Indebtedness to, or holds no Lien on any property of, the Company or any other Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so designated at the time of or after giving effect to such Designation, Designation (assuming the Consolidated Leverage Test would be satisfied. No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability for taxes, ERISA obligations and similar items, except, in each case, pursuant to Investments which are made in accordance with Section 4.07;
(2) is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding comply with Section 4.09;
(3) is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results, except, in each case, pursuant to Investments which are made in accordance with Section 4.07; and
(4) will not become a Subsidiary of the Issuer or its other Subsidiaries (other than another Unrestricted Subsidiary) where the Issuer or such other Subsidiary will become a general partner of any such Subsidiary. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture on the date that is 30 days after the Issuer or any Restricted Subsidiary has obtained knowledge effectiveness of such failure (unless such failure has been cured by such dateDesignation), and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.06 or the Lien is not permitted under Section 4.10, the Issuer shall be in default of the applicable covenant. The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture. All Designations and Redesignations must be evidenced by resolutions of the Board of Directors of the Issuer and an Officer’s Certificate certifying compliance with the foregoing provisions delivered to the Trustee.
Appears in 1 contract
