Designation of Non-Restricted/Restricted Subsidiaries. (a) The Borrower from time to time, by notice to the Agent, shall be entitled to designate and redesignate that either: (i) a Restricted Subsidiary will be a Non-Restricted Subsidiary; or (ii) a Non-Restricted Subsidiary will be a Restricted Subsidiary, provided that the Borrower will not be entitled to: (iii) make any such designation if a Default or an Event of Default has occurred and is continuing (unless such designation will cure such Default or Event of Default); or (iv) make any such designation if a Default or an Event of Default would result from or exist immediately after such a designation. (b) The Borrower will, concurrently with delivery of a notice pursuant to Section 15.1(a), deliver to the Agent (i) a certificate of a senior officer of the Borrower addressed to the Agent and the Lenders certifying that the Borrower is entitled to make the designation referenced in such notice and (ii) an updated Schedule J reflecting such designation. (c) Promptly after receipt of a notice pursuant to Section 15.1(a) which designates a Restricted Subsidiary to be a Non-Restricted Subsidiary, the Agent shall release the Affiliate Guarantee and Subordination Agreement and any Debenture Security granted by such Subsidiary. (d) Notwithstanding the Focus Minority Interest, Redearth Partnership shall be a Restricted Subsidiary (unless and until it is re-designated as a Non-Restricted Subsidiary pursuant to the provisions hereof) subject to the following terms and conditions: (i) the Security to which Redearth Partnership is a party shall be limited recourse to an undivided 60% interest in the assets of Redearth Partnership as contemplated in the Redearth Intercreditor Agreement; (ii) the Agent and the Lenders hereby acknowledge that the Borrower's ability to comply with certain of the representations and warranties in Article 13 and certain of the covenants in Article 14, in each case solely with respect to Redearth Partnership, may be adversely affected by the Focus Minority Interest and that compliance with such representations, warranties and covenants are qualified if but only to the extent that the Focus Minority Interest or compliance by the Borrower with its obligations under the "Partnership Agreement" prevents compliance therewith; and (iii) notwithstanding any other provision of the Documents: (A) any Guarantees and Security Interests which Redearth Partnership has provided or may in the future provide to the "Focus Lender Agent, the "Focus Lenders" or any "Replacement Focus Lenders" will be permitted hereunder provided that such Guarantees and Security Interests are subject to the limited recourse and other provisions of the Redearth Intercreditor Agreement; (B) for certainty any Guarantees referred to in (A) above will be excluded from Consolidated Senior Debt and Consolidated Total Debt; (C) the Partnership will be entitled to distribute to "FET" the "FET Partnership Interest" share of distributions of income, receipts or revenues from time to time in accordance with the "Partnership Agreement"; (D) the enforcement of the "Focus Documents" in accordance with the provisions of the Redearth Intercreditor Agreement will not constitute a Default or Event of Default; (E) no Harvest Party will transfer to Redearth Partnership any Oil and Gas Properties or any other material assets without the prior consent of the Lenders; provided that the Borrower shall be entitled to make any additional capital contributions required by the "Partnership Agreement"; (F) the Redearth Partnership may be dissolved and its partnership assets may be distributed to its partners so long as the partnership assets distributed to the Borrower include the same undivided 60% interest in the assets of the Redearth Partnership which from time to time is subject to the Security granted by the Redearth Partnership; and (G) capitalized terms in quotations in this Section 15.1(d) will have the meanings attributed to them in the Redearth Intercreditor Agreement, provided that the special provisions in this Section 15.1(d) will cease to apply if the Focus Minority Interest is acquired directly or indirectly by the Trust.
Appears in 1 contract
Designation of Non-Restricted/Restricted Subsidiaries. (a) The Borrower from time to time, by notice to the Agent, shall be entitled to designate and redesignate that either:
(i) a Restricted Subsidiary will be a Non-Restricted Subsidiary; or
(ii) a Non-Restricted Subsidiary will be a Restricted Subsidiary, provided that the Borrower will not be entitled to:
(iii) make any such designation if a Default or an Event of Default has occurred and is continuing (unless such designation will cure such Default or Event of Default); or
(iv) make any such designation if a Default or an Event of Default would result from or exist immediately after such a designation.
(b) The Borrower will, concurrently with delivery of a notice pursuant to Section 15.1(a14.1(a), deliver to the Agent (i) a certificate of a senior officer of the Borrower addressed to the Agent and the Lenders certifying that the Borrower is entitled to make the designation referenced in such notice and (ii) an updated Schedule J reflecting such designation.
(c) Promptly after receipt of a notice pursuant to Section 15.1(a14.1 (a) which designates a Restricted Subsidiary to be a Non-Restricted Subsidiary, the Agent shall release the Affiliate Guarantee and Subordination Agreement and any Debenture Security granted by such Subsidiary.
(d) Notwithstanding the Focus Minority Interest, Redearth Partnership shall be a Restricted Subsidiary (unless and until it is re-designated as a Non-Restricted Subsidiary pursuant to the provisions hereof) subject to the following terms and conditions:
(i) the Security to which Redearth Partnership is a party shall will not be limited recourse required to provide an undivided 60% interest in the assets of Redearth Partnership as contemplated in the Redearth Intercreditor Affiliate Guarantee and Subordination Agreement;
(ii) the Agent and the Lenders hereby acknowledge that the Borrower's ability to comply with certain of the representations and warranties in Article 13 12 and certain of the covenants in Article 1413, in each case solely with respect to Redearth Partnership, may be adversely affected by the Focus Minority Interest and that compliance with such representations, warranties and covenants are qualified if but only to the extent that the Focus Minority Interest or compliance by the Borrower with its obligations under the "Partnership Agreement" prevents compliance therewith; and
(iii) notwithstanding any other provision of the Documents:
(A) any Guarantees and Security Interests which Redearth Partnership has provided or may in the future provide to the "Focus Lender Agent, the "Focus Lenders" or any "Replacement Focus LendersFocus; .Lenders" will be permitted hereunder provided that such Guarantees and Security Interests are subject to the limited recourse and other provisions of the Redearth Intercreditor Agreement;
(B) for certainty any Guarantees referred to in (A) above will be excluded from Consolidated Senior Debt and Consolidated Total Debt;
(C) the Partnership will be entitled to distribute to "FET" the "FET Partnership Interest" share of distributions of income, receipts or revenues from time to time in accordance with the "Partnership Agreement";
(D) the enforcement of the "Focus Documents" in accordance with the provisions of the Redearth Intercreditor Agreement will not constitute a Default or Event of Default;
(E) no Harvest Party will transfer to Redearth Partnership any Oil and Gas Properties or any other material assets without the prior consent of the Lenders; provided that the Borrower shall be entitled to make any additional capital contributions required by the "Partnership Agreement";
(F) the Redearth Partnership may be dissolved and its partnership assets may be distributed to its partners so long as the partnership assets distributed to the Borrower include the same undivided 60% interest in the assets of the Redearth Partnership which from time to time is subject to the Senior Security granted by the Redearth Partnership; and
(G) capitalized terms in quotations in this Section 15.1(d14.1 (d) will have the meanings attributed to them in the Redearth Intercreditor Agreement, provided that the special provisions in this Section 15.1(d14.1(d) will cease to apply if the Focus Minority Interest is acquired directly or indirectly by the Trust.
Appears in 1 contract
Designation of Non-Restricted/Restricted Subsidiaries. (a) The Borrower from time to time, by notice to the Agent, shall be entitled to designate and redesignate that either:
(i) a Restricted Subsidiary will be a Non-Restricted Subsidiary; or
(ii) a Non-Restricted Subsidiary will be a Restricted Subsidiary, provided that the Borrower will not be entitled to:
(iii) make any such designation if a Default or an Event of Default has occurred and is continuing (unless such designation will cure such Default or Event of Default); or
(iv) make any such designation if a Default or an Event of Default would result from or exist immediately after such a designation.
(b) The Borrower will, concurrently with delivery of a notice pursuant to Section 15.1(a), deliver to the Agent (i) a certificate of a senior officer of the Borrower addressed to the Agent and the Lenders certifying that the Borrower is entitled to make the designation referenced in such notice and (ii) an updated Schedule J reflecting such designation.
(c) Promptly after receipt of a notice pursuant to Section 15.1(a) which designates a Restricted Subsidiary to be a Non-Restricted Subsidiary, the Agent shall release the Affiliate Guarantee and Subordination Agreement and any Debenture Security granted by such Subsidiary.
(d) Notwithstanding the Focus Minority Interest, Redearth Partnership shall be a Restricted Subsidiary (unless and until it is re-designated as a Non-Restricted Subsidiary pursuant to the provisions hereof) subject to the following terms and conditions:
(i) the Security to which Redearth Partnership is a party shall be limited recourse to an undivided 60% interest in the assets of Redearth Partnership as contemplated in the Redearth Intercreditor Agreement;
(ii) the Agent and the Lenders hereby acknowledge that the Borrower's ability to comply with certain of the representations and warranties in Article 13 and certain of the covenants in Article 14, in each case solely with respect to Redearth Partnership, may be adversely affected by the Focus Minority Interest and that compliance with such representations, warranties and covenants are qualified if but only to the extent that the Focus Minority Interest or compliance by the Borrower with its obligations under the "Partnership Agreement" prevents compliance therewith; and
(iii) notwithstanding any other provision of the Documents:
(A) any Guarantees and Security Interests which Redearth Partnership has provided or may in the future provide to the "Focus Lender Agent, the "Focus Lenders" or any "Replacement Focus Lenders" will be permitted hereunder provided that such Guarantees and Security Interests are subject to the limited recourse and other provisions of the Redearth Intercreditor Agreement;
(B) for certainty any Guarantees referred to in (A) above will be excluded from Consolidated Senior Debt and Consolidated Total Debt;
(C) the Partnership will be entitled to distribute to "FET" the "FET Partnership Interest" share of distributions of income, receipts or revenues from time to time in accordance with the "Partnership Agreement";
(D) the enforcement of the "Focus Documents" in accordance with the provisions of the Redearth Intercreditor Agreement will not constitute a Default or Event of Default;
(E) no Harvest Party will transfer to Redearth Partnership any Oil and Gas Properties or any other material assets without the prior consent of the Lenders; provided that the Borrower shall be entitled to make any additional capital contributions required by the "Partnership Agreement";
(F) the Redearth Partnership may be dissolved and its partnership assets may be distributed to its partners so long as the partnership assets distributed to the Borrower include the same undivided 60% interest in the assets of the Redearth Partnership which from time to time is subject to the Security granted by the Redearth Partnership; and
(G) capitalized terms in quotations in this Section 15.1(d) will have the meanings attributed to them in the Redearth Intercreditor Agreement, provided that the special provisions in this Section 15.1(d) will cease to apply if the Focus Minority Interest is acquired directly or indirectly by the Trust.
Appears in 1 contract
Designation of Non-Restricted/Restricted Subsidiaries. (a) The Borrower from time to time, by notice to the AgentAgent in the form of Schedule G, shall be entitled to designate (and redesignate re-designate) that either:
(i) a Restricted Subsidiary will be a Non-Restricted Subsidiary; or
(ii) a Non-Restricted Subsidiary will be a Restricted Subsidiary and/or a Material Restricted Subsidiary, provided that that, the Borrower will not be entitled toto designate a Restricted Subsidiary to be a Non-Restricted Subsidiary if:
(iii) make any such designation if a Default or an Event of Default has occurred and is continuing unless the exercise of the Borrower's discretion under paragraph (unless such designation will cure i) or (ii) above would cause such Default or Event of Default)Default to be cured; or
(iv) make any such designation if a Default or an Event of Default would result from or exist immediately after such a designation.
(b) The If the Borrower willdesignates a Material Restricted Subsidiary to either no longer be a Material Restricted Subsidiary or to be a Non-Restricted Subsidiary as set out in clause (a) above, concurrently with delivery of a notice pursuant to Section 15.1(a), deliver to such Material Restricted Subsidiary shall be released from its obligations under its Guarantee Agreement by the Agent (i) a upon written request by the Borrower if such request is accompanied by an officer's certificate of a senior officer of the Borrower addressed to the Agent and the Lenders certifying that no Default or Event of Default has occurred and is continuing at the Borrower is entitled to make the time of such designation referenced in such notice and (ii) an updated Schedule J reflecting or would result from such designation, including pursuant to Section 12.1(v).
(c) Promptly after receipt of a notice pursuant to Section 15.1(a) which designates a Restricted Subsidiary to be a Non-Restricted Subsidiary, the Agent shall release the Affiliate Guarantee and Subordination Agreement and any Debenture Security granted by such Subsidiary.
(d) Notwithstanding the Focus Minority Interest, Redearth Partnership shall be a Restricted Subsidiary (unless and until it is re-Unless otherwise designated as a Non-Restricted Subsidiary pursuant to the provisions hereof) subject to the following terms and conditions:
(i) the Security to which Redearth Partnership is a party shall be limited recourse to an undivided 60% interest in the assets of Redearth Partnership as contemplated in the Redearth Intercreditor Agreement;
(ii) the Agent and the Lenders hereby acknowledge that the Borrower's ability to comply with certain of the representations and warranties in Article 13 and certain of the covenants in Article 14, in each case solely with respect to Redearth Partnership, may be adversely affected by the Focus Minority Interest and that compliance with such representations, warranties and covenants are qualified if but only to the extent that the Focus Minority Interest or compliance by the Borrower with its obligations under the "Partnership Agreement" prevents compliance therewith; and
(iii) notwithstanding any other provision of the Documents:
(A) any Guarantees and Security Interests which Redearth Partnership has provided or may in the future provide to the "Focus Lender Agent, the "Focus Lenders" or any "Replacement Focus Lenders" will be permitted hereunder provided that such Guarantees and Security Interests are subject to the limited recourse and other provisions of the Redearth Intercreditor Agreement;
(B) for certainty any Guarantees referred to in (A) above will be excluded from Consolidated Senior Debt and Consolidated Total Debt;
(C) the Partnership will be entitled to distribute to "FET" the "FET Partnership Interest" share of distributions of income, receipts or revenues from time to time in accordance with the "Partnership Agreement";
(D) the enforcement Section 13.1(a), all Subsidiaries of the "Focus Documents" in accordance with the provisions of the Redearth Intercreditor Agreement Borrower will not constitute a Default or Event of Default;
(E) no Harvest Party will transfer be deemed to Redearth Partnership any Oil and Gas Properties or any other material assets without the prior consent of the Lenders; provided that the Borrower shall be entitled to make any additional capital contributions required by the "Partnership Agreement";
(F) the Redearth Partnership may be dissolved and its partnership assets may be distributed to its partners so long as the partnership assets distributed to the Borrower include the same undivided 60% interest in the assets of the Redearth Partnership which from time to time is subject to the Security granted by the Redearth Partnership; and
(G) capitalized terms in quotations in this Section 15.1(d) will have the meanings attributed to them in the Redearth Intercreditor Agreement, provided that the special provisions in this Section 15.1(d) will cease to apply if the Focus Minority Interest is acquired directly or indirectly by the TrustRestricted Subsidiaries.
Appears in 1 contract