Common use of Restricted Subsidiaries Clause in Contracts

Restricted Subsidiaries. The Company shall not designate any Restricted Subsidiary as an Unrestricted Subsidiary, and shall not itself, and shall not permit any Restricted Subsidiary to, sell, convey, transfer or otherwise dispose of any assets, other than in the ordinary course of business, to any Unrestricted Subsidiary or any Person that becomes an Unrestricted Subsidiary as part of such transaction, unless, after giving effect to any such action, the assets (not including any assets so sold, conveyed, transferred or otherwise disposed of, other than in the ordinary course of business, to any Unrestricted Subsidiary or any Person that becomes an Unrestricted Subsidiary as part of such transaction) and business of the Company and its remaining Restricted Subsidiaries generated at least 90% of Digital Mobile-SMR Operating Cash Flow in the fiscal quarter of the Company most recently completed prior to the date of such action. The Board of Directors may designate any existing Unrestricted Subsidiary or any Person that is about to become a Subsidiary of the Company as a Restricted Subsidiary if, after giving effect to such action (and, if such designation is made in connection with the acquisition of a Person or an operating business that is about to become a Subsidiary of the Company, after giving effect to all terms of such acquisition) on a pro forma basis, on the date of such action, the Debt, if any, of such Unrestricted Subsidiary or Person outstanding immediately prior to such designation would have been permitted to be Incurred (and shall be deemed to have been Incurred) for all purposes of this Indenture. Subject to the second preceding paragraph and compliance with Section 1009, the Board of Directors may designate any Restricted Subsidiary as an Unrestricted Subsidiary so long as such Subsidiary satisfies the definition of Unrestricted Subsidiary. The designation by the Board of Directors of a Restricted Subsidiary as an Unrestricted Subsidiary shall, for all purposes of Section 1009 (including clause (B) in the first paragraph of Section 1009), be deemed to be a Restricted Payment of an amount equal to the fair market value of the Company’s ownership interest in such Subsidiary (including, without duplication, such indirect ownership interest in all Subsidiaries of such Subsidiary), as determined by the Board of Directors in good faith and evidenced by a Board Resolution. The Board of Directors, from time to time, may designate any Person that is about to become a Subsidiary of the Company as an Unrestricted Subsidiary, and may designate any newly-created Subsidiary as an Unrestricted Subsidiary, if at the time such Subsidiary is created it contains no assets (other than such de minimis amount of assets then required by law for the formation of corporations) and no Debt. Subsidiaries of the Company that are not designated by the Board of Directors as Restricted or Unrestricted Subsidiaries shall be deemed to be Restricted Subsidiaries. Notwithstanding any provisions of this Section 1010, all Subsidiaries of an Unrestricted Subsidiary shall be Unrestricted Subsidiaries. The Board of Directors shall not change the designation of a Subsidiary of the Company more than twice in any period of five years.

Restricted Subsidiaries. The In the event that any Person becomes a Wholly-Owned Domestic Subsidiary of Company (including by such Person ceasing to be excluded from the definition of “Restricted Subsidiary”), Company shall not designate any Restricted (a) concurrently with such Person becoming a Wholly-Owned Domestic Subsidiary as an Unrestricted Subsidiary, and shall not itself, and shall not permit any Restricted cause such Wholly-Owned Domestic Subsidiary to, sell, convey, transfer or otherwise dispose of any assets, other than in the ordinary course of business, to any Unrestricted Subsidiary or any Person that becomes an Unrestricted Subsidiary as part of such transaction, unless, after giving effect to any such action, the assets (not including any assets so sold, conveyed, transferred or otherwise disposed of, other than in the ordinary course of business, to any Unrestricted Subsidiary or any Person that becomes an Unrestricted Subsidiary as part of such transaction) and business of the Company and its remaining Restricted Subsidiaries generated at least 90% of Digital Mobile-SMR Operating Cash Flow in the fiscal quarter of the Company most recently completed prior to the date of such action. The Board of Directors may designate any existing Unrestricted Subsidiary or any Person that is about to become a Guarantor hereunder and a Grantor under the Collateral Agreement by executing and delivering to Administrative Agent and Collateral Agent a Counterpart Agreement, and (b) take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements, and certificates as are similar to those described in Sections 3.1(b) and 3.1(d), as well as duly executed Control Agreements covering any applicable Controlled Account. In the event that any Person becomes a Foreign Subsidiary of Company, and the ownership interests of such Foreign Subsidiary are owned by any Subsidiary Guarantor, Company shall cause such Subsidiary Guarantor to deliver all such documents, instruments, agreements, and certificates as are similar to those described in Section 3.1(b), and Company shall take, or shall cause such Subsidiary Guarantor to take, all of the actions referred to in Section 3.1(d)(i) necessary to grant and to perfect a First Priority Lien in favor of Collateral Agent, for the benefit of Secured Parties, under the Collateral Agreement in all of the Non-Voting Capital Stock and sixty five percent (65%) of the Voting Capital Stock of such Foreign Subsidiary. With respect to each such Restricted Subsidiary, Company shall promptly send to Administrative Agent written notice setting forth with respect to such Person (i) the date on which such Person became a Restricted Subsidiary ifof Company, after giving effect to such action and (and, if such designation is made in connection with the acquisition of a Person or an operating business that is about to become a Subsidiary ii) all of the Company, after giving effect data required to be set forth in Schedules 4.1 and 4.2 with respect to all terms Restricted Subsidiaries of Company; provided, such acquisition) on a pro forma basis, on the date of such action, the Debt, if any, of such Unrestricted Subsidiary or Person outstanding immediately prior to such designation would have been permitted to be Incurred (and written notice shall be deemed to have been Incurred) supplement Schedules 4.1 and 4.2 for all purposes of this Indenture. Subject to the second preceding paragraph and compliance with Section 1009, the Board of Directors may designate any Restricted Subsidiary as an Unrestricted Subsidiary so long as such Subsidiary satisfies the definition of Unrestricted Subsidiary. The designation by the Board of Directors of a Restricted Subsidiary as an Unrestricted Subsidiary shall, for all purposes of Section 1009 (including clause (B) in the first paragraph of Section 1009), be deemed to be a Restricted Payment of an amount equal to the fair market value of the Company’s ownership interest in such Subsidiary (including, without duplication, such indirect ownership interest in all Subsidiaries of such Subsidiary), as determined by the Board of Directors in good faith and evidenced by a Board Resolution. The Board of Directors, from time to time, may designate any Person that is about to become a Subsidiary of the Company as an Unrestricted Subsidiary, and may designate any newly-created Subsidiary as an Unrestricted Subsidiary, if at the time such Subsidiary is created it contains no assets (other than such de minimis amount of assets then required by law for the formation of corporations) and no Debt. Subsidiaries of the Company that are not designated by the Board of Directors as Restricted or Unrestricted Subsidiaries shall be deemed to be Restricted Subsidiaries. Notwithstanding any provisions of this Section 1010, all Subsidiaries of an Unrestricted Subsidiary shall be Unrestricted Subsidiaries. The Board of Directors shall not change the designation of a Subsidiary of the Company more than twice in any period of five yearshereof.

Restricted Subsidiaries. (i) The Company Guarantor shall not designate create, acquire or otherwise suffer to exist any Restricted Subsidiary as Subsidiaries other than the Borrower which are not also Subsidiaries of the Borrower. The Guarantor will not invest, loan or advance at any one time an aggregate amount of more than $15,000,000 to or in any of its Unrestricted Subsidiary, and Subsidiaries. The Guarantor shall not itself, permit any of its Restricted Subsidiaries to issue any preferred stock (other than to the Guarantor and/or one or more wholly-owned Restricted Subsidiaries) and shall not permit any other Person (other than to the Guarantor and/or one or more wholly-owned Restricted Subsidiary to, sell, convey, transfer or otherwise dispose Subsidiaries) to own any Capital Stock of any assets, other than in Restricted Subsidiary; provided however that this Section 3.02(e) shall not prohibit the ordinary course ownership by directors of business, to any Unrestricted Subsidiary director's qualifying shares or any Person that becomes an Unrestricted Subsidiary as part the ownership by foreign nationals of such transaction, unless, after giving effect to any such action, the assets (not including any assets so sold, conveyed, transferred or otherwise disposed of, other than in the ordinary course Capital Stock of business, to any Unrestricted Subsidiary or any Person that becomes an Unrestricted Subsidiary as part of such transaction) and business of the Company and its remaining Restricted Subsidiaries generated at least 90% of Digital Mobile-SMR Operating Cash Flow in the fiscal quarter of the Company most recently completed prior to the date of such action. The Board of Directors may designate any existing Unrestricted Subsidiary or any Person that is about to become a Subsidiary of the Company as a Restricted Subsidiary if, after giving effect to such action (and, if such designation is made in connection with the acquisition of a Person or an operating business that is about to become a Subsidiary of the Company, after giving effect to all terms of such acquisition) on a pro forma basis, on the date of such action, the Debt, if any, of such Unrestricted Subsidiary or Person outstanding immediately prior to such designation would have been permitted to be Incurred (and shall be deemed to have been Incurred) for all purposes of this Indenture. Subject to the second preceding paragraph and compliance with Section 1009, the Board of Directors may designate any Restricted Subsidiary as an Unrestricted to the extent mandated by applicable law. (ii) Upon the creation or acquisition of any Restricted Subsidiary so long as which is organized under the laws of the United States or any state thereof, the Guarantor shall (1) cause such Restricted Subsidiary shall execute and deliver to the Agent a Subsidiary Guaranty Agreement, (2) the Guarantor shall pledge or cause to be pledged to the Agent 100% of the capital stock of such Restricted Subsidiary and shall execute and deliver or cause to be executed and delivered pledge agreements, stock powers and other instruments to effect such pledge, and (3) if the Oil and Gas Properties of such Restricted Subsidiary are to be included in the Borrowing Base, cause such Restricted Subsidiary to grant to the Agent Liens on its Oil and Gas Properties included in the Borrowing Base. Upon the creation or acquisition of any Restricted Subsidiary which is not organized under the laws of the United States or any state thereof, the Guarantor shall pledge or cause to be pledged to the Agent the maximum percentage of the Capital Stock of such Subsidiary satisfies which may be pledged to the definition Agent without constituting an investment of Unrestricted Subsidiaryearnings in U.S. Property under Section 956 (or any successor provision) of the Code that would trigger an increase in the gross income of the Guarantor pursuant to Section 951 (or any successor provision) of the Code or such lesser percentage as may be acceptable to the Agent in its sole discretion. The designation by the Board of Directors of a Restricted Subsidiary as an Unrestricted Subsidiary shall, for all purposes of Section 1009 (including clause (B) in the first paragraph of Section 1009), be deemed Guarantor shall or shall cause to be a Restricted Payment of an amount equal executed and delivered pledge agreements, stock powers and other instruments to the fair market value of the Company’s ownership interest in effect such Subsidiary (including, without duplication, such indirect ownership interest in all Subsidiaries of such Subsidiary), as determined by the Board of Directors in good faith and evidenced by a Board Resolution. The Board of Directors, from time to time, may designate any Person that is about to become a Subsidiary of the Company as an Unrestricted Subsidiary, and may designate any newly-created Subsidiary as an Unrestricted Subsidiary, if at the time such Subsidiary is created it contains no assets (other than such de minimis amount of assets then required by law for the formation of corporations) and no Debt. Subsidiaries of the Company that are not designated by the Board of Directors as Restricted or Unrestricted Subsidiaries shall be deemed to be Restricted Subsidiaries. Notwithstanding any provisions of this Section 1010, all Subsidiaries of an Unrestricted Subsidiary shall be Unrestricted Subsidiaries. The Board of Directors shall not change the designation of a Subsidiary of the Company more than twice in any period of five yearspledge.

Restricted Subsidiaries. The Subject to Section 5.16, in the event that any Person becomes a Wholly-Owned Domestic Subsidiary of Company (including by such Person ceasing to be excluded from the definition of “Restricted Subsidiary”), Company shall not designate any Restricted (a) concurrently with such Person becoming a Wholly-Owned Domestic Subsidiary as an Unrestricted Subsidiary, and shall not itself, and shall not permit any Restricted cause such Wholly-Owned Domestic Subsidiary to, sell, convey, transfer or otherwise dispose of any assets, other than in the ordinary course of business, to any Unrestricted Subsidiary or any Person that becomes an Unrestricted Subsidiary as part of such transaction, unless, after giving effect to any such action, the assets (not including any assets so sold, conveyed, transferred or otherwise disposed of, other than in the ordinary course of business, to any Unrestricted Subsidiary or any Person that becomes an Unrestricted Subsidiary as part of such transaction) and business of the Company and its remaining Restricted Subsidiaries generated at least 90% of Digital Mobile-SMR Operating Cash Flow in the fiscal quarter of the Company most recently completed prior to the date of such action. The Board of Directors may designate any existing Unrestricted Subsidiary or any Person that is about to become a Guarantor hereunder and a Grantor under the Collateral Agreement by executing and delivering to Administrative Agent and Collateral Agent a Guarantor Counterpart Agreement, and (b) take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements, and certificates as are similar to those described in Sections 3.1(b) and 3.1(d), as well as duly executed Control Agreements covering any applicable Controlled Account. In the event that any Person becomes a Foreign Subsidiary of Company, and the ownership interests of such Foreign Subsidiary are owned by any Subsidiary Guarantor, Company shall cause such Subsidiary Guarantor to deliver all such documents, instruments, agreements, and certificates as are similar to those described in Section 3.1 (b), and Company shall take, or shall cause such Subsidiary Guarantor to take, all of the actions referred to in Section 3.1(d)(i) necessary to grant and to perfect a Lien perfected at first priority (subject in priority only to Permitted Priority Liens) in favor of Collateral Agent, for the benefit of Secured Parties, under the Collateral Agreement in all of the Non-Voting Capital Stock and sixty five percent (65%) of the Voting Capital Stock of such Foreign Subsidiary. With respect to each such Restricted Subsidiary, Company shall promptly send to Administrative Agent written notice setting forth with respect to such Person (i) the date on which such Person became a Restricted Subsidiary ifof Company, after giving effect to such action and (and, if such designation is made in connection with the acquisition of a Person or an operating business that is about to become a Subsidiary ii) all of the Company, after giving effect data required to be set forth in Schedules 4.1 and 4.2 with respect to all terms Restricted Subsidiaries of Company; provided, such acquisition) on a pro forma basis, on the date of such action, the Debt, if any, of such Unrestricted Subsidiary or Person outstanding immediately prior to such designation would have been permitted to be Incurred (and written notice shall be deemed to have been Incurred) supplement Schedules 4.1 and 4.2 for all purposes of this Indenture. Subject to the second preceding paragraph and compliance with Section 1009, the Board of Directors may designate any Restricted Subsidiary as an Unrestricted Subsidiary so long as such Subsidiary satisfies the definition of Unrestricted Subsidiary. The designation by the Board of Directors of a Restricted Subsidiary as an Unrestricted Subsidiary shall, for all purposes of Section 1009 (including clause (B) in the first paragraph of Section 1009), be deemed to be a Restricted Payment of an amount equal to the fair market value of the Company’s ownership interest in such Subsidiary (including, without duplication, such indirect ownership interest in all Subsidiaries of such Subsidiary), as determined by the Board of Directors in good faith and evidenced by a Board Resolution. The Board of Directors, from time to time, may designate any Person that is about to become a Subsidiary of the Company as an Unrestricted Subsidiary, and may designate any newly-created Subsidiary as an Unrestricted Subsidiary, if at the time such Subsidiary is created it contains no assets (other than such de minimis amount of assets then required by law for the formation of corporations) and no Debt. Subsidiaries of the Company that are not designated by the Board of Directors as Restricted or Unrestricted Subsidiaries shall be deemed to be Restricted Subsidiaries. Notwithstanding any provisions of this Section 1010, all Subsidiaries of an Unrestricted Subsidiary shall be Unrestricted Subsidiaries. The Board of Directors shall not change the designation of a Subsidiary of the Company more than twice in any period of five yearshereof.

Restricted Subsidiaries. The Company shall not designate any Restricted Subsidiary as an Unrestricted Subsidiary, and shall not itself, and shall not permit any Restricted Subsidiary to, sell, convey, transfer or otherwise dispose of any assets, other than in the ordinary course of business, to any Unrestricted Subsidiary or any Person that becomes an Unrestricted Subsidiary as part of such transaction, unlessunless such Subsidiary does not own any stock of, after giving effect to and does not own or hold any such actionLien on any property of, the assets (not including any assets so sold, conveyed, transferred or otherwise disposed of, other than in the ordinary course of business, to any Unrestricted Subsidiary Company or any Person Restricted Subsidiary; provided, that becomes (a) any guarantee by the Company or any Restricted Subsidiary of the Company of any Indebtedness of the Subsidiary being designated as an Unrestricted Subsidiary as part shall be deemed an incurrence of such transactionIndebtedness or an Investment by the Company or such Restricted Subsidiary (or both, if applicable); (b) and business either (i) the Subsidiary to be deemed an Unrestricted Subsidiary has total gross assets of $1,000 or less, or (ii) if the Subsidiary to be deemed an Unrestricted Subsidiary has total gross assets greater than $1,000, then such designation shall, for all purposes of Section 9.6 (including clause (b) thereof), be deemed to be a Restricted Payment of an amount equal to the fair market value of the Company and its remaining Restricted Company's ownership interest in such Subsidiary (including, without duplication, such indirect ownership interest in all Subsidiaries generated at least 90% of Digital Mobile-SMR Operating Cash Flow in the fiscal quarter of the Company most recently completed prior to the date of such actionSubsidiary), as determined by the Board (as defined below) in good faith; and (c) if applicable, the incurrence of Indebtedness and the Investment referred to in clause (a) of this proviso would be permitted under Sections 9.1 and 9.6, respectively. The Company's Board of Directors (the "Board") may designate any existing Unrestricted Subsidiary or any Person that is about to become a Subsidiary of the Company as a Restricted Subsidiary if, after giving effect to such action (and, if such designation is made in connection with the acquisition of a Person or an operating business that is about to become a Subsidiary of the Company, after giving effect to all terms of such acquisition) (a) on a pro forma basis, on the date of such action, the DebtLiens and Indebtedness, if any, of such Unrestricted Subsidiary or Person outstanding immediately prior to such designation would have been permitted to be Incurred incurred (and shall be deemed to have been Incurredincurred) for all purposes of this IndentureAgreement; and (b) no Default or Event of Default shall have occurred and be continuing. Subject to Notwithstanding the second preceding paragraph and compliance with foregoing provisions of this Section 10099.18, the Board of Directors may not designate any Restricted Subsidiary as Affiliated Credit Party to be an Unrestricted Subsidiary so long as such Subsidiary satisfies the definition of Unrestricted Subsidiary. The designation by the Board of Directors of a Restricted Subsidiary as an Unrestricted Subsidiary shall, for all purposes of Section 1009 (including clause (B) in the first paragraph of Section 1009), be deemed to be a Restricted Payment of an amount equal to the fair market value of the Company’s ownership interest in such Subsidiary (including, without duplication, such indirect ownership interest in all Subsidiaries of such Subsidiary), as determined by the Board of Directors in good faith and evidenced by a Board Resolution. The Board of DirectorsBoard, from time to time, may designate any Person that is about to become a Subsidiary of the Company as an Unrestricted Subsidiary, and may designate any newly-created Subsidiary as an Unrestricted Subsidiary, if at the time such Subsidiary is created it contains no assets (other than such de minimis amount of assets then required by law for the formation of corporations) and no DebtIndebtedness. Subsidiaries of the Company that are not designated by the Board of Directors as Restricted or Unrestricted Subsidiaries shall be deemed to be Restricted Subsidiaries. Notwithstanding any provisions of this Section 10109.18, all Subsidiaries of an Unrestricted Subsidiary shall be Unrestricted Subsidiaries. The Board of Directors shall not change the designation of a Subsidiary of the Company more than twice in any period of five years.

Restricted Subsidiaries. (i) The Company Guarantor shall not designate create, acquire or otherwise suffer to exist any Restricted Subsidiary as Subsidiaries other than the Borrower which are not also Subsidiaries of the Borrower. The Guarantor will not invest, loan or advance at any one time an aggregate amount of more than $15,000,000 to or in any of its Unrestricted Subsidiary, and Subsidiaries. The Guarantor shall not itself, permit any of its Restricted Subsidiaries to issue any preferred stock (other than to the Guarantor and/or one or more Wholly Owned Restricted Subsidiaries) and shall not permit any other Person (other than to the Guarantor and/or one or more Wholly Owned Restricted Subsidiary to, sell, convey, transfer or otherwise dispose Subsidiaries) to own any Capital Stock of any assets, other than in Restricted Subsidiary; provided however that this Section 3.02(e) shall not prohibit the ordinary course ownership by directors of business, to any Unrestricted Subsidiary director's qualifying shares or any Person that becomes an Unrestricted Subsidiary as part the ownership by foreign nationals of such transaction, unless, after giving effect to any such action, the assets (not including any assets so sold, conveyed, transferred or otherwise disposed of, other than in the ordinary course Capital Stock of business, to any Unrestricted Subsidiary or any Person that becomes an Unrestricted Subsidiary as part of such transaction) and business of the Company and its remaining Restricted Subsidiaries generated at least 90% of Digital Mobile-SMR Operating Cash Flow in the fiscal quarter of the Company most recently completed prior to the date of such action. The Board of Directors may designate any existing Unrestricted Subsidiary or any Person that is about to become a Subsidiary of the Company as a Restricted Subsidiary if, after giving effect to such action (and, if such designation is made in connection with the acquisition of a Person or an operating business that is about to become a Subsidiary of the Company, after giving effect to all terms of such acquisition) on a pro forma basis, on the date of such action, the Debt, if any, of such Unrestricted Subsidiary or Person outstanding immediately prior to such designation would have been permitted to be Incurred (and shall be deemed to have been Incurred) for all purposes of this Indenture. Subject to the second preceding paragraph and compliance with Section 1009, the Board of Directors may designate any Restricted Subsidiary as an Unrestricted to the extent mandated by applicable law. (ii) Upon the creation or acquisition of any Restricted Subsidiary so long as which is organized under the laws of the United States or any state thereof, the Guarantor shall (1) cause such Restricted Subsidiary shall execute and deliver to the Agent a Subsidiary Guaranty Agreement, (2) the Guarantor shall pledge or cause to be pledged to the Agent 100% of the capital stock of such Restricted Subsidiary and shall execute and deliver or cause to be executed and delivered pledge agreements, stock powers and other instruments to effect such pledge, and (3) if the Oil and Gas Properties of such Restricted Subsidiary are to be included in the Borrowing Base, cause such Restricted Subsidiary to grant to the Agent Liens on its Oil and Gas Properties included in the Borrowing Base. Upon the creation or acquisition of any Restricted Subsidiary which is not organized under the laws of the United States or any state thereof, the Guarantor shall pledge or cause to be pledged to the Agent the maximum percentage of the Capital Stock of such Subsidiary satisfies which may be pledged to the definition Agent without constituting an investment of Unrestricted Subsidiaryearnings in U.S. Property under Section 956 (or any successor provision) of the Code that would trigger an increase in the gross income of the Guarantor pursuant to Section 951 (or any successor provision) of the Code or such lesser percentage as may be acceptable to the Agent in its sole discretion. The designation by the Board of Directors of a Restricted Subsidiary as an Unrestricted Subsidiary shall, for all purposes of Section 1009 (including clause (B) in the first paragraph of Section 1009), be deemed Guarantor shall or shall cause to be a Restricted Payment of an amount equal executed and delivered pledge agreements, stock powers and other instruments to the fair market value of the Company’s ownership interest in effect such Subsidiary (including, without duplication, such indirect ownership interest in all Subsidiaries of such Subsidiary), as determined by the Board of Directors in good faith and evidenced by a Board Resolution. The Board of Directors, from time to time, may designate any Person that is about to become a Subsidiary of the Company as an Unrestricted Subsidiary, and may designate any newly-created Subsidiary as an Unrestricted Subsidiary, if at the time such Subsidiary is created it contains no assets (other than such de minimis amount of assets then required by law for the formation of corporations) and no Debt. Subsidiaries of the Company that are not designated by the Board of Directors as Restricted or Unrestricted Subsidiaries shall be deemed to be Restricted Subsidiaries. Notwithstanding any provisions of this Section 1010, all Subsidiaries of an Unrestricted Subsidiary shall be Unrestricted Subsidiaries. The Board of Directors shall not change the designation of a Subsidiary of the Company more than twice in any period of five yearspledge.