Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, provided that: (i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation; (ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary; (iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary; (iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08; (v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and (vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses). (b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that: (i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation; (ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06; (iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08; (iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary); (v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and (vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02.
Appears in 5 contracts
Sources: Indenture (Yin Jia Investments LTD), Indenture (Yin Jia Investments LTD), Indenture (Yin Jia Investments LTD)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, ; provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any IndebtednessIndebtedness of, or any Lien on any propertyproperty of, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 4.05 or such Lien would violate Section 4.084.07;
(viv) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as to be Unrestricted Subsidiaries in accordance with this Section 4.18(a4.17(a); and
(viv) the Investment deemed to have been made thereby in such newly newly-designated Unrestricted Subsidiary and each other newly newly-designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 4.06 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Restructuring Group upon the designation of the Subsidiaries in the Commercial Properties Restructuring Group as Unrestricted Subsidiaries in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted SubsidiariesRestructuring, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group such Subsidiaries remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group such Subsidiaries remain primarily engaged in the Permitted Businessesbusinesses other than residential property development business).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly newly-designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.064.05;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred incurred by such newly newly-designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred incurred under Section 4.084.07;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRCPRC and is not an Other Non-Guarantor Subsidiary, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to in accordance with the extent required terms under Section 11.10the Indenture; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, is not an Other Non-Guarantor Subsidiary, is not Xinyuan International (HK) Property Investment Co., Limited or a Subsidiary of a JV Subsidiary Guarantor, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent as required under Section 10.02Article 10.
Appears in 4 contracts
Sources: Indenture (Xinyuan Real Estate Co., Ltd.), Indenture (Xinyuan Real Estate Co., Ltd.), Indenture (Xinyuan Real Estate Co., Ltd.)
Designation of Restricted and Unrestricted Subsidiaries. The Company may designate after the Issue Date any Subsidiary (other than the Issuers) (including any newly acquired or newly formed Subsidiary) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(a) The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, provided that:
(i) no Default shall have or Event of Default has occurred and be is continuing at the time of or after giving effect to such designationDesignation;
(iib) neither the Subsidiary to be so designated and its Subsidiaries do not at the time of Designation own any Capital Stock or Indebtedness of, or own or hold any Lien on any Property of, the Company nor or any Restricted other Subsidiary guarantees or provides credit support for of the Indebtedness Company that is not a Subsidiary of such Restricted Subsidiarythe Subsidiary so designated;
(iiic) such Restricted the Subsidiary to be so designated and its Subsidiaries do not at the time of Designation have and do not thereafter Incur any Indebtedness pursuant to which the lender has no outstanding Indebtedness that could trigger a cross-default recourse to any of the Indebtedness assets of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a)Subsidiaries; and
(vid) either (x) the Investment deemed Subsidiary to have been made thereby in be so designated has total consolidated assets of $1,000 or less or (y) if such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated has consolidated assets greater than $1,000, then such Designation would be permitted under Section 4.07. The Company may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a “Revocation”) only if, immediately after giving effect such Revocation:
(e) (x) the Company could Incur at least $1.00 of additional Indebtedness under Section 4.09(a) or (y) the Fixed Charge Coverage Ratio would be greater than immediately prior to such Revocation, in each case on a pro forma basis taking into account such Revocation;
(f) all Liens of such Unrestricted Subsidiary outstanding immediately following such Revocation would, if Incurred at such time, have been permitted to be made under Section 4.07 Incurred for all purposes of this Indenture; and
(other than any Investment deemed g) no Default or Event of Default has occurred and is continuing after giving effect to have been made such Revocation. Each Designation and Revocation must be evidenced by promptly delivering to the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation Trustee a board resolution of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) Designation or Revocation, as the case may be, and an Officers’ Certificate certifying compliance with the preceding provisions. A Revocation will be deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02.
Appears in 4 contracts
Sources: Indenture (Endo International PLC), Indenture (Endo International PLC), Indenture (Endo International PLC)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, ; provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company Parent Guarantor nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company Parent Guarantor or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company Parent Guarantor or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, Indebtedness or any Lien on any property, of the Company Parent Guarantor or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 Section 4.03 or such Lien would violate Section 4.08Section 4.05;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(aSection 4.14(a); and;
(vi) the Investment deemed to have been made thereby in such newly newly-designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 Section 4.04; and
(other than any Investment deemed to have been made by vii) no member of the Company ER Group or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors direct or indirect holding company of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties ER Group may be designated as an Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses)Subsidiary.
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly newly-designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06Section 4.03;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly newly-designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08Section 4.05;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);; and
(v) if such Restricted Subsidiary is not organized under a Wholly Owned Subsidiary which, directly or indirectly, own any mining deposits or reserves or any mining license (other than with respect to the laws of the PRCBaruun Naran mine), such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor. Notwithstanding the foregoing, the Parent Guarantor or a JV will not be obligated to cause any Restricted Subsidiary Guarantor to guarantee the Notes to the extent required under Section 11.10; and
such guarantee could reasonably be expected to give rise to or result in any conflict with or violation of applicable law (vi) if such Restricted Subsidiary is not organized under or risk of personal or criminal liability for the laws of the PRCofficers, all Capital Stock directors, managers or shareholders of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02Subsidiary).
Appears in 3 contracts
Sources: Indenture (Energy Resources Rail LLC), Indenture (Enrestechnology LLC), Indenture (Enrestechnology LLC)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors or chief financial officer of Parent may designate any Subsidiary of the Parent (other than (x) any Borrower or (y) any Material Subsidiary, provided that the Borrower may designate any Material Subsidiary as an Unrestricted Subsidiary if (I) the Borrower reasonably determines that such Material Subsidiary is unable to continue as a Restricted Subsidiary as a matter of applicable law (as reasonably determined by the Borrower in consultation with the Administrative Agent) or (II) such Material Subsidiary is Coupang Pay and Coupang Pay does not have Consolidated Total Tangible Assets of more than 15% of the Consolidated Total Tangible Assets of Parent and its Restricted Subsidiaries or gross revenues of more than 15% of the consolidated gross revenues of Parent and its Restricted Subsidiaries, in each case determined as of the most recent financial statements that have been delivered pursuant to Section 5.1(a) or (b) of Section 3.4(a))), including a newly acquired or created Subsidiary of Parent, to be an Unrestricted Subsidiary, provided thatSubsidiary if it meets the following qualifications:
(i) such Subsidiary does not own any Equity Interest of Parent or any other Restricted Subsidiary of Parent;
(ii) Parent would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate fair market value (as determined by Parent in good faith) of all Investments of Parent or its Restricted Subsidiaries in such Subsidiary (valued at Parent’s and its Restricted Subsidiaries’ proportional share of the fair market value (as determined by Parent in good faith) of such Subsidiary’s assets less liabilities);
(iii) any Guarantee or other credit support thereof by Parent or any Restricted Subsidiary of Parent is permitted under Section 6.1 or Section 6.7;
(iv) neither Parent nor any Restricted Subsidiary of Parent has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.1 or Section 6.7;
(v) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to would result from such designation;
(iivi) neither the Company nor no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of Parent or a Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;Parent; and
(iiivii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary (or hold an exclusive license in respect of) any IndebtednessIntellectual Property other than ownership or a license resulting from a Permitted IP Transfer. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to subsection (b).
(b) (i) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(iii), (a)(iv) or any Lien on any property, (a)(vi) of the Company or any Section 5.13 will be deemed to become at that time a Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under subject to the consequences set forth in subsection (d) of Section 4.06 or such Lien would violate Section 4.08;
5.13 and (v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (Aii) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors Parent may designate any an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary, provided that:,
(i) no Default shall have occurred all existing Investments of Parent and the Restricted Subsidiaries of Parent therein (valued at Parent’s and its Restricted Subsidiaries’ proportional share of the fair market value of its assets less liabilities) will be continuing deemed made at the time of or after giving effect to such designationthat time;
(ii) any all existing Equity Interest or Indebtedness of Parent or a Restricted Subsidiary of Parent held by such Unrestricted Subsidiary will be deemed issued or incurred, as applicable, at that time, and all Liens on property of Parent or a Restricted Subsidiary of Parent securing obligations of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06incurred at that time;
(iii) all existing transactions between it and Parent or any Lien on the property Restricted Subsidiary of such Unrestricted Subsidiary at the time of such designation which Parent will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08entered into at that time;
(iv) such Unrestricted Subsidiary is not a Subsidiary it will be released at that time from its Guaranty; and
(v) it will cease to be subject to the provisions of another Unrestricted Subsidiary (that is not concurrently being designated this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.13(b),
(i) all of its Indebtedness and Liens will be deemed incurred at that time for purposes of Section 6.1 and Section 6.2, as applicable;
(vii) if such Restricted Subsidiary all Investments therein previously charged under Section 6.7 will be credited thereunder;
(iii) unless it is not organized under the laws of the PRCan Excluded Subsidiary, such Restricted Subsidiary it shall upon such designation execute and deliver be required to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor pursuant to the extent required under Section 11.105.10; and
(viiv) if such it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the Board of Directors or chief financial officer of Parent of a Subsidiary is not organized under as an Unrestricted Subsidiary after the laws Effective Date will be evidenced to the Administrative Agent by promptly filing with the Administrative Agent a copy of the PRC, all Capital Stock resolutions of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged Board of Directors of Parent giving effect to the extent required under Section 10.02designation and a certificate of a Responsible Officer of Parent certifying that the designation complied with the foregoing provisions.
Appears in 3 contracts
Sources: Revolving Credit and Guaranty Agreement (Coupang, Inc.), Revolving Credit and Guaranty Agreement (Coupang, Inc.), Revolving Credit and Guaranty Agreement (Coupang, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors of the Issuer may designate any Restricted Subsidiary of the Issuer to be an Unrestricted Subsidiary, ; provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made Guarantee by the Company Issuer or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation thereof of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors any Indebtedness of the Company has determined in good faith that Subsidiary being so designated will be deemed to be an Incurrence of Indebtedness by the designation of Issuer or such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the RestructuringRestricted Subsidiary (or both, (Bif applicable) at the time of such designation, and such Incurrence of Indebtedness would be permitted under Section 6.9;
(ii) the members aggregate Fair Market Value of all outstanding Investments owned by the Restructuring Group remain Issuer and its Restricted Subsidiaries in the Subsidiary being so designated (including any Guarantee by the Issuer or any Restricted Subsidiary thereof of the Companyany Indebtedness of such Subsidiary) will, and (C) at unless it otherwise constitutes a Permitted Investment, be deemed to be a Restricted Investment made as of the time of such designation and that such Investment would be permitted under Section 6.8;
(iii) such Subsidiary does not hold any Liens on any property of the Issuer or any Restricted Subsidiary thereof;
(iv) the Subsidiary being so designated:
(A) is a Person with respect to which neither the Issuer nor any of its Restricted Subsidiaries has any direct or indirect obligation (i) to subscribe for additional Equity Interests or (ii) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results;
(B) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or any of its Restricted Subsidiaries, except to the extent such Guarantee or credit support would be released upon such designation; and
(C) is not a party to any agreement or understanding with the Issuer or any of its Restricted Subsidiaries unless the terms of any such agreement would be permitted under Section 6.11;
(v) simultaneously with such designation, the members Issuer designates an Unrestricted Subsidiary to be a Restricted Subsidiary and the Consolidated EBITDA for the most recently completed twelve fiscal months for which internal financial statements are immediately available of such Unrestricted Subsidiaries is equal to or greater than the Restructuring Group remain primarily engaged Consolidated EBITDA for the most recently completed twelve fiscal months for which internal financial statements are immediately available of such Restricted Subsidiary; and
(vi) no Default or Event of Default would be in the Permitted Businesses)existence following such designation.
(b) Any designation of a Restricted Subsidiary of the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee the Board Resolution giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by the Indenture. If, at any time, any Unrestricted Subsidiary would fail to meet any of the preceding requirements described in subclauses (i), (ii) or (iii) of clause (a) above, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be Incurred or made by a Restricted Subsidiary of the Issuer as of such date and, if such Indebtedness, Investments or Liens are not permitted to be Incurred or made as of such date under this Indenture, the Issuer will be in default under this Indenture.
(c) The Board of Directors of the Issuer may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i) no Default shall have occurred such designation will be deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of the Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be continuing at permitted if such Indebtedness is permitted under the time of or after giving effect to such designationcovenant described under Section 6.9;
(ii) any Indebtedness all outstanding Investments owned by such Unrestricted Subsidiary will be deemed to be made as of the time of such designation and such designation will only be permitted if such Investments would be permitted under the covenant described above under Section 6.8 provided that such outstanding Investments shall be valued at the lesser of (A) the Fair Market Value of such Investments measured on the date of such designation and (B) the Fair Market Value of such Investments measured at the time each such Investment was made by such Unrestricted Subsidiary;
(iii) all Liens upon property or assets of such Unrestricted Subsidiary outstanding existing at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;6.7; and
(iv) no Default or Event of Default would be in existence following such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02designation.
Appears in 3 contracts
Sources: Trust Indenture (Trulieve Cannabis Corp.), Trust Indenture, Trust Indenture
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors Par Borrower may designate any Restricted Subsidiary of the Par Borrower to be an Unrestricted Subsidiary; provided, provided that:
(i) no Default shall have occurred the aggregate fair market value, as determined in good faith by the Par Borrower, of all outstanding Investments owned by the Par Borrower and its Restricted Subsidiaries in the Subsidiary being so designated (including any Guarantee by the Par Borrower or any Restricted Subsidiary thereof of any Indebtedness of such Subsidiary) will be continuing at deemed to be an Investment made as of the time of or after giving effect to such designationdesignation and that such Investment would be permitted under Section 6.7 hereof, including as a Permitted Investment;
(ii) neither such Subsidiary does not hold any Liens on any property of the Company nor Par Borrower or any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiarythereof;
(iii) the Subsidiary being so designated:
(A) is not party to any agreement, contract, arrangement or understanding with the Par Borrower or any Restricted Subsidiary of the Par Borrower unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Par Borrower or such Restricted Subsidiary has no outstanding Indebtedness than those that could trigger a cross-default to might be obtained at the Indebtedness time from Persons who are not Affiliates of the Company Par Borrower or would be permitted under Section 6.9 hereof; and
(B) is a Person with respect to which neither the Par Borrower nor any other of its Restricted SubsidiarySubsidiaries has any direct or indirect obligation to subscribe for additional Equity Interests, except as would be permitted under Section 6.7 hereof;
(iv) no Event of Default would be in existence following such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;designation; and
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries no Borrower (or are being concurrently direct or indirect parent thereof) may be designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated an Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted if such Borrower is the primary borrower, obligor or applicant with respect to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of Revolver Usage outstanding at such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses)time.
(b) Any designation of a Restricted Subsidiary of the Par Borrower as an Unrestricted Subsidiary will be evidenced to the Agent by filing with the Agent of a certificate duly executed by an Authorized Person of the Par Borrower certifying that such designation complied with the preceding conditions and was permitted by this Agreement. If, at any time, any Unrestricted Subsidiary (x) would fail to meet any of the preceding requirements described in subclauses (A) or (B) of clause (iii) of Section 6.11(a), it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Agreement and any Indebtedness, Investments, or Liens on the property, of such Subsidiary will be deemed to be Incurred or made by a Restricted Subsidiary of the Par Borrower as of such date and, if such Indebtedness, Investments or Liens are not permitted to be Incurred or made as of such date under this Agreement, such event will constitute an Event of Default under this Agreement.
(c) The Board of Directors Par Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, provided that:
(i) no Default shall have occurred such designation will be deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of the Par Borrower of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be continuing at the time of or after giving effect to permitted if such designationIndebtedness is Permitted Indebtedness;
(ii) any Indebtedness all outstanding Investments owned by such Unrestricted Subsidiary will be deemed to be made as of the time of such designation and such designation will only be permitted if such Investments would be permitted under Section 6.7 hereof, including as Permitted Investments;
(iii) all Liens upon property or assets of such Unrestricted Subsidiary outstanding existing at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;Permitted Liens; and
(iv) no Event of Default would be in existence following such designation. Notwithstanding the provisions set forth above with respect to “Unrestricted Subsidiaries”, the Par Borrower shall not designate any Subsidiary is not a Subsidiary of another as an Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
that such Subsidiary (vix) if such Restricted Subsidiary directly or indirectly owns a Refinery (other than an Excluded Refinery) or (y) is not organized under the laws an “Unrestricted Subsidiary” for purposes of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02Material Term Facilities.
Appears in 3 contracts
Sources: Asset Based Revolving Credit Agreement (Par Pacific Holdings, Inc.), Asset Based Revolving Credit Agreement (Par Pacific Holdings, Inc.), Asset Based Revolving Credit Agreement (Par Pacific Holdings, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted unless a Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary is a Restricted Subsidiary (and is not concurrently being designated as an Unrestricted Subsidiary;); provided that
(iii1) Sino-Forest (China) Investments Limited shall always be a Restricted Subsidiary,
(2) such designation would not cause a Default,
(3) a Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could cannot be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted a Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are an Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); Subsidiary and
(vi4) the Investment deemed to have been made thereby in such newly newly- designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses)4.07.
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i1) no Default such designation shall have occurred and be continuing at the time of or after giving effect to such designation;not cause a Default,
(ii2) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly newly-designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii3) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred incurred by such newly newly-designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred incurred under Section 4.08;
(iv4) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v5) if such Restricted Subsidiary is not organized under the laws of the PRCPRC and is a not a Foreign Subsidiary, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture in the form of Exhibit E by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; Guarantor, and
(vi6) if such Restricted Subsidiary is not organized under the laws of the PRCPRC or any other jurisdiction that prohibits the property and assets (including the Capital Stock) of such Restricted Subsidiary from being pledged, mortgaged or charged to secure the obligations of the Company or a Subsidiary Guarantor, all property and assets (including the Capital Stock Stock) of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be mortgaged, charged or pledged as required under Article 10.
(c) Any designation by the Board of Directors of a Subsidiary as a Restricted Subsidiary or Unrestricted Subsidiary will be evidenced to the extent required under Section 10.02Trustee by promptly filing with the Trustee a copy of the Board Resolution giving effect to the designation and an Officer’s Certificate certifying that the designation complied with the foregoing provisions.
Appears in 3 contracts
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors In addition to the Unrestricted Subsidiaries so designated as described below, the Company may designate any Restricted other Subsidiary to be an Unrestricted Subsidiary provided that the Company could make a Restricted Payment or Permitted Investment in an amount equal to the Fair Market Value as determined in good faith by the Board of Directors of such Subsidiary pursuant to Section 4.10 and such amount is thereafter treated as a Restricted Payment or Permitted Investment for the purpose of calculating the amount available in connection with Section 4.10. An Unrestricted Subsidiary may be designated as a Restricted Subsidiary if (i) all the Debt of such Unrestricted Subsidiary could be incurred pursuant to Section 4.09 and (ii) all the Liens on the Property and assets of such Unrestricted Subsidiary could be Incurred pursuant to Section 4.11. Unless so designated as an Unrestricted Subsidiary, provided any Person that becomes a Subsidiary of the Company will be classified as a Restricted Subsidiary; provided, however, that such Subsidiary shall not be designated a Restricted Subsidiary and shall be automatically classified as an Unrestricted Subsidiary if (1) either of the requirements set forth in the immediately preceding paragraph will not be satisfied after giving pro forma effect to such classification, (2) if such Person is a Subsidiary of an Unrestricted Subsidiary or (3) unless the Company elects otherwise, such Subsidiary is formed and exists solely for the purpose of effecting a transaction or series of transactions otherwise permitted by this Indenture and such Subsidiary will be merged, consolidated, liquidated, dissolved, wound up or amalgamated into the Company or a Restricted Subsidiary within a reasonable period following consummation of such transaction or series of transactions. Any such designation of a Subsidiary as an Unrestricted Subsidiary (in addition to those Subsidiaries initially designated as Unrestricted Subsidiaries pursuant to the immediately following paragraph) or redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary by the Board of Directors of the Company will be evidenced to the Trustee by delivery to the Trustee of a resolution of the Board of Directors of the Company giving effect to such designation or redesignation and an Officers’ Certificate that:
(i1) no Default shall have occurred and be continuing at certifies that such designation or redesignation complies with the time of or after giving effect to such designation;preceding provisions, and
(ii2) neither gives the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness effective date of such Restricted Subsidiary;
(iii) designation or redesignation, such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default delivery to the Indebtedness Trustee to occur within 45 days after the end of the fiscal quarter of the Company in which such designation or any other Restricted Subsidiary;
redesignation is made (iv) such Restricted Subsidiary does not own any Disqualified Stock or, in the case of a designation or redesignation made during the last fiscal quarter of the Company or Disqualified or Preferred Stock Company’s fiscal year, within 90 days after the end of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, such fiscal year). As of the Company or any Restricted SubsidiaryIssue Date, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that the designated Greenpac Holding LLC (and its direct parent holding company), Containerboard Partners (Ontario) Inc., ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ S.p.A., Longhorn Converting Paper, LLC, Air Cascades Inc., Falcon Packaging, LLC, 819 Virginia LLC and Cascades Lessor SC LLC (and their respective Subsidiaries) as Unrestricted Subsidiaries. Upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such an Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under in compliance with this Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC4.15, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture automatically be released from any Subsidiary Guarantee previously made by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned upon receipt by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02Trustee of an Officers’ Certificate and a Board Resolution in respect thereof.
Appears in 3 contracts
Designation of Restricted and Unrestricted Subsidiaries. The Company may designate after the Issue Date any Subsidiary (other than the Subsidiary Issuers) (including any newly acquired or newly formed Subsidiary) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(a) The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, provided that:
(i) no Default shall have or Event of Default has occurred and be is continuing at the time of or after giving effect to such designationDesignation;
(iib) neither the Subsidiary to be so designated and its Subsidiaries do not at the time of Designation own any Capital Stock or Indebtedness of, or own or hold any Lien on any Property of, the Company nor or any Restricted other Subsidiary guarantees or provides credit support for of the Indebtedness Company that is not a Subsidiary of such Restricted Subsidiarythe Subsidiary so designated;
(iiic) such Restricted the Subsidiary to be so designated and its Subsidiaries do not at the time of Designation have and do not thereafter Incur any Indebtedness pursuant to which the lender has no outstanding Indebtedness that could trigger a cross-default recourse to any of the Indebtedness assets of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a)Subsidiaries; and
(vid) either (x) the Investment deemed Subsidiary to have been made thereby in be so designated has total consolidated assets of $1,000 or less or (y) if such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated has consolidated assets greater than $1,000, then such Designation would be permitted under Section 4.07. The Company may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a “Revocation”) only if, immediately after giving effect such Revocation:
(e) (x) the Company could Incur at least $1.00 of additional Indebtedness under Section 4.09(a) or (y) the Fixed Charge Coverage Ratio would be greater than immediately prior to such Revocation, in each case on a pro forma basis taking into account such Revocation;
(f) all Liens of such Unrestricted Subsidiary outstanding immediately following such Revocation would, if Incurred at such time, have been permitted to be made under Section 4.07 Incurred for all purposes of this Indenture; and
(other than any Investment deemed g) no Default or Event of Default has occurred and is continuing after giving effect to have been made such Revocation. Each Designation and Revocation must be evidenced by promptly delivering to the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation Trustee a board resolution of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) Designation or Revocation, as the case may be, and an Officers’ Certificate certifying compliance with the preceding provisions. A Revocation will be deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02.
Appears in 2 contracts
Sources: Indenture (Endo International PLC), Indenture (Endo International PLC)
Designation of Restricted and Unrestricted Subsidiaries. (a) All of the Corporation’s existing Wholly-Owned Subsidiaries shall be “Restricted Subsidiaries” and any future Wholly-Owned Subsidiary of the Corporation shall become a “Restricted Subsidiary” as at such time that it becomes a Wholly-Owned Subsidiary of the Corporation. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does Corporation shall not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than designate any Investment deemed to have been made by existing or future Wholly-Owned Subsidiary of the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group Corporation as an “Unrestricted SubsidiariesSubsidiary”. However, provided that (A) the Board of Directors of the Company has determined Corporation shall be permitted to (1) designate any Unrestricted Subsidiary or any Subsidiary that is not a Wholly-Owned Subsidiary as a “Restricted Subsidiary”, provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary in good faith that an amount equal to the designation outstanding Indebtedness of such Subsidiaries Unrestricted Subsidiary or Subsidiary that is not a Wholly-Owned Subsidiary, as applicable, and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 5.7, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (b) no Default or Event of Default would be in existence following such designation, or (2) subject to the Commercial Properties Group first paragraph of Section 5.7, designate any Restricted Subsidiary that is not a Wholly-Owned Subsidiary as an “Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the RestructuringSubsidiary” if, (B) as at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company(a) such designation would not cause a Default, and (Cb) at after giving pro forma effect to such designation, (i) the sum, without duplication, of the EBITDA of the Corporation’s Unrestricted Subsidiaries, would not be greater than 10% of the EBITDA of the Corporation and its Subsidiaries, on a consolidated basis, and (ii) the sum, without duplication, of the total assets of the Corporation’s Unrestricted Subsidiaries, would not be greater than 10% of the total assets of the Corporation and its Subsidiaries, on a consolidated basis, all as shown on the most recent internal income statement and balance sheet of the Corporation; provided, however, that upon such designation the aggregate Fair Market Value of all outstanding Investments owned by the Corporation and its Restricted Subsidiaries in such Restricted Subsidiary shall be deemed to be an Investment made as of the time of such designation, the members designation and shall reduce the amount available for Restricted Payments under Section 5.6 or under one or more clauses of the Restructuring Group remain primarily engaged in definition of “Permitted Investments”, as determined by the Permitted Businesses).
(b) The Corporation, and provided further that such designation shall only be permitted if the Investment would be permitted at that time and if such Restricted Subsidiary that is not a Wholly-Owned Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. Any designation of a Restricted Subsidiary as an Unrestricted Subsidiary shall be evidenced to the Trustees by filing with the Trustees a certified copy of a resolution of the Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at of the time of or after Corporation giving effect to such designation;
(ii) designation and an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted under Section 5.6. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will shall be deemed to have been Incurred be incurred by such newly designated a Restricted Subsidiary as a result of such designation would be date and, if such Indebtedness is not permitted to be Incurred incurred as of such date under Section 4.06;
(iii) any Lien on 5.7, the property Corporation shall be in default of such Section 5.7. Mediative G.P. Inc. and Mediative Performance L.P. shall be treated as “Unrestricted Subsidiary at Subsidiaries” from and after the time date of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under this Indenture. In the laws event Mediative G.P. Inc. and Mediative Performance L.P. become Wholly-Owned Subsidiaries of the PRCCorporation, Mediative G.P. Inc. and Mediative Performance L.P. will, at such time, become Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02Subsidiaries.
Appears in 2 contracts
Sources: Trust Indenture (Wall2wall Media Inc.), Trust Indenture (Wall2wall Media Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) All of the Corporation’s existing Wholly-Owned Subsidiaries shall be “Restricted Subsidiaries” and any future Wholly-Owned Subsidiary of the Corporation shall become a “Restricted Subsidiary” as at such time that it becomes a Wholly-Owned Subsidiary of the Corporation. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does Corporation shall not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than designate any Investment deemed to have been made by existing or future Wholly-Owned Subsidiary of the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group Corporation as an “Unrestricted SubsidiariesSubsidiary”. However, provided that (A) the Board of Directors of the Company has determined Corporation shall be permitted to (1) designate any Unrestricted Subsidiary or any Subsidiary that is not a Wholly-Owned Subsidiary as a “Restricted Subsidiary”, provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary in good faith that an amount equal to the designation outstanding Indebtedness of such Subsidiaries Unrestricted Subsidiary or Subsidiary that is not a Wholly-Owned Subsidiary, as applicable, and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 8.7, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (b) no Default or Event of Default would be in existence following such designation, or (2) subject to the Commercial Properties Group first paragraph of Section 8.7, designate any Restricted Subsidiary that is not a Wholly-Owned Subsidiary as an “Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the RestructuringSubsidiary” if, (B) as at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company(a) such designation would not cause a Default, and (Cb) at after giving pro forma effect to such designation, (i) the sum, without duplication, of the EBITDA of the Corporation’s Unrestricted Subsidiaries, would not be greater than 10% of the EBITDA of the Corporation and its Subsidiaries, on a consolidated basis, and (ii) the sum, without duplication, of the total assets of the Corporation’s Unrestricted Subsidiaries, would not be greater than 10% of the total assets of the Corporation and its Subsidiaries, on a consolidated basis, all as shown on the most recent internal income statement and balance sheet of the Corporation; provided, however, that upon such designation the aggregate Fair Market Value of all outstanding Investments owned by the Corporation and its Restricted Subsidiaries in such Restricted Subsidiary shall be deemed to be an Investment made as of the time of such designation, the members designation and shall reduce the amount available for Restricted Payments under Section 8.6 or under one or more clauses of the Restructuring Group remain primarily engaged in definition of “Permitted Investments”, as determined by the Permitted Businesses).
(b) The Corporation, and provided further that such designation shall only be permitted if the Investment would be permitted at that time and if such Restricted Subsidiary that is not a Wholly-Owned Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. Any designation of a Restricted Subsidiary as an Unrestricted Subsidiary shall be evidenced to the Debenture Trustees by filing with the Debenture Trustees a certified copy of a resolution of the Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at of the time of or after Corporation giving effect to such designation;
(ii) designation and an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted under Section 8.6. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will shall be deemed to have been Incurred be incurred by such newly designated a Restricted Subsidiary as a result of such designation would be date and, if such Indebtedness is not permitted to be Incurred incurred as of such date under Section 4.06;
(iii) any Lien on 8.7, the property Corporation shall be in default of such Section 8.7. Mediative G.P. Inc. and Mediative Performance L.P. shall be treated as “Unrestricted Subsidiary at Subsidiaries” from and after the time date of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under this Indenture. In the laws event Mediative G.P. Inc. and Mediative Performance L.P. become Wholly-Owned Subsidiaries of the PRCCorporation, Mediative G.P. Inc. and Mediative Performance L.P. will, at such time, become Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02Subsidiaries.
Appears in 2 contracts
Sources: Trust Indenture (Wall2wall Media Inc.), Trust Indenture (Wall2wall Media Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors of the Issuer may designate any Restricted Subsidiary of the Issuer to be an Unrestricted Subsidiary, ; provided that:
(i) no Default shall have occurred and be continuing at the time of or and after giving effect to any such designation;, the Issuer and its Restricted Subsidiaries account for at least 85% of the Consolidated Net Tangible Assets of the Issuer (excluding all of the assets of an Unrestricted Subsidiary that was an Unrestricted Subsidiary as of the Issue Date)
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made Guarantee by the Company Issuer or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation thereof of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors any Indebtedness of the Company has determined in good faith that Subsidiary being so designated will be deemed to be an Incurrence of Indebtedness by the designation of Issuer or such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the RestructuringRestricted Subsidiary (or both, (Bif applicable) at the time of such designation, and such Incurrence of Indebtedness would be permitted under Section 7.10;
(iii) the members aggregate Fair Market Value of all outstanding Investments owned by the Restructuring Group remain Issuer and its Restricted Subsidiaries in the Subsidiary being so designated (including any Guarantee by the Issuer or any Restricted Subsidiary thereof of the Companyany Indebtedness of such Subsidiary) will, and (C) at unless it otherwise constitutes a Permitted Investment, be deemed to be a Restricted Investment made as of the time of such designation, the members designation and that such Investment would be permitted under Section 7.9;
(iv) such Subsidiary does not hold any Liens on any property of the Restructuring Group remain primarily engaged Issuer or any Restricted Subsidiary thereof;
(v) the Subsidiary being so designated:
(A) is a Person with respect to which neither the Issuer nor any of its Restricted Subsidiaries has any direct or indirect obligation (i) to subscribe for additional Equity Interests or (ii) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results;
(B) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Issuer or any of its Restricted Subsidiaries, except to the extent such Guarantee or credit support would be released upon such designation; and
(C) is not a party to any agreement or understanding with the Issuer or any of its Restricted Subsidiaries unless the terms of any such agreement would be permitted under Section 7.12;
(vi) no Default or Event of Default would be in the Permitted Businesses)existence following such designation.
(b) Any designation of a Restricted Subsidiary of the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee the Board Resolution giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by the Indenture.
(c) The Board of Directors of the Issuer may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i) no Default shall have occurred such designation will be deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of the Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be continuing at the time of or after giving effect to permitted if such designationIndebtedness is permitted under Section 7.10;
(ii) any Indebtedness all outstanding Investments owned by such Unrestricted Subsidiary will be deemed to be made as of the time of such designation and such designation will only be permitted if such Investments would be permitted under Section 7.9 provided that such outstanding Investments shall be valued at the lesser of (A) the Fair Market Value of such Investments measured on the date of such designation and (B) the Fair Market Value of such Investments measured at the time each such Investment was made by such Unrestricted Subsidiary;
(iii) all Liens upon property or assets of such Unrestricted Subsidiary outstanding existing at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;7.7; and
(iv) no Default or Event of Default would be in existence following such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02designation.
Appears in 2 contracts
Sources: Trust Indenture (Columbia Care Inc.), Trust Indenture (Columbia Care Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors Borrower may designate any Restricted Subsidiary (other than any Subsidiary that is an obligor with respect to any Indebtedness incurred pursuant to Section 7.01(a)(xiii) or 7.01(a)(xiv)), including a newly acquired or created Subsidiary, to be an Unrestricted SubsidiarySubsidiary if the sum of (i) the total assets of such Subsidiary (or, if any such Subsidiary itself has Subsidiaries, the consolidated total assets of such Subsidiary and its Consolidated Subsidiaries) and the total assets of every other Unrestricted Subsidiary (other than Cornerstone, the Specified Joint Ventures and the Excluded Partnerships), in each case determined as of the date of the Most Recent Financial Statements and (ii) the amount of any Investments made in the Specified Joint Ventures after the Third Amendment and Restatement Date (determined as of the date of such designation in accordance with the definition of “Investment”), does not exceed 5% of the Consolidated Total Assets of the Borrower and its Consolidated Subsidiaries, the designation would not cause a Default and on a Pro Forma Basis, after giving effect to such designation, the Borrower shall be in compliance with the covenants set forth in Article 6 hereof; provided that:
(i) no Default shall have occurred and be continuing at such Subsidiary does not own any capital stock of the time of Borrower or after giving effect to such designationany Restricted Subsidiary;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any IndebtednessIndebtedness of, or any Lien on any propertyproperty of, of the Company Borrower or any Restricted Subsidiary, if such Disqualified in each case except to the extent permitted by Section 7.01 or Preferred Stock or Indebtedness could not 7.02, respectively;
(iii) at the time of designation, the designation would be Incurred permitted under Section 4.06 7.08;
(iv) to the extent the Indebtedness of the Subsidiary is not Non-Recourse Debt, any Guarantee or such Lien would violate Section 4.08other credit support thereof by the Borrower or any Restricted Subsidiary is permitted under Sections 7.01 and 7.08;
(v) such the Subsidiary is not party to any transaction or arrangement with the Borrower or any Restricted Subsidiary does that would not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this be permitted under Section 4.18(a)7.04; and
(vi) neither the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or Borrower nor any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors has any obligation to subscribe for additional Equity Interests of the Company has determined in good faith that the designation Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor operating results except to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned permitted by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02Sections 7.01 and 7.
Appears in 2 contracts
Sources: Abl Credit Agreement (Kindred Healthcare, Inc), Abl Credit Agreement (Kindred Healthcare, Inc)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors of the Company may designate any Restricted Subsidiary (other than a Co-Issuer) of the Company to be an Unrestricted Subsidiary, ; provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made Guarantee by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation thereof of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors any Indebtedness of the Subsidiary being so designated will be deemed to be an incurrence of Indebtedness by the Company has determined in good faith that the designation of or such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the RestructuringRestricted Subsidiary (or both, (Bif applicable) at the time of such designation, and such incurrence of Indebtedness would be permitted under Section 4.09;
(ii) the members aggregate value (as determined in accordance with this Indenture) of all outstanding Investments owned by the Restructuring Group remain Company and its Restricted Subsidiaries in the Subsidiary being so designated (including any Guarantee by the Company or any Restricted Subsidiary thereof of the Company, and (Cany Indebtedness of such Subsidiary) at will be deemed to be an Investment made as of the time of such designation, designation and that such Investment would be permitted under Section 4.08 hereof;
(iii) the members Subsidiary being so designated has not Guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Restructuring Group remain primarily engaged Company or any of its Restricted Subsidiaries, except (A) to the extent such Guarantee or credit support would be released upon such designation or (B) a pledge of the Equity Interests of the Unrestricted Subsidiary that is the obligor thereunder; and
(iv) no Default or Event of Default would be in the Permitted Businesses)existence following such designation.
(b) Any designation of a Restricted Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by delivering to the Trustee the Board Resolution giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by this Indenture. If, at any time, any Unrestricted Subsidiary would fail to meet any of the preceding requirements described in clause (iii) above, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness, Investments or Liens on the property of such Subsidiary will be deemed to be incurred or made by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness, Investments or Liens are not permitted to be incurred or made as of such date under this Indenture, the Issuers will be in default under this Indenture.
(c) The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i) no Default shall have occurred such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness (including any Obligations that are non-recourse) of such Unrestricted Subsidiary and such designation will only be continuing at the time of or after giving effect to permitted if such designation;Indebtedness is permitted under Section 4.09 hereof; and
(ii) any Indebtedness no Default or Event of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation Default would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of in existence following such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02designation.
Appears in 2 contracts
Sources: Indenture (Coty Inc.), Indenture (Coty Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, ; provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any IndebtednessIndebtedness of, or any Lien on any propertyproperty of, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 4.05 or such Lien would violate Section 4.084.07;
(viv) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as to be Unrestricted Subsidiaries in accordance with this Section 4.18(a4.17(a); and
(viv) the Investment deemed to have been made thereby in such newly newly-designated Unrestricted Subsidiary and each other newly newly-designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses)4.06.
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly newly-designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.064.05;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred incurred by such newly newly-designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred incurred under Section 4.084.07;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRCPRC and is not an Other Non-Guarantor Subsidiary, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to in accordance with the extent required terms under Section 11.10the Indenture; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, is not an Other Non-Guarantor Subsidiary, is not Xinyuan International (HK) Property Investment Co., Limited or a Subsidiary of a JV Subsidiary Guarantor, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent as required under Section 10.02Article 10.
Appears in 2 contracts
Sources: Indenture (Xinyuan Real Estate Co., Ltd.), Indenture (Xinyuan Real Estate Co., Ltd.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors of OPTI may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, Subsidiary if no Default or Event of Default would be in existence following such designation; provided that:
(i1) no Default shall have occurred the aggregate Fair Market Value of all outstanding Investments owned by OPTI and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any its Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
the Subsidiary so designated (vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than including any Investment deemed to have been made guarantee by the Company OPTI or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of any Indebtedness of such Subsidiaries in the Commercial Properties Group Subsidiary) shall be deemed to be an Investment made as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that time of the designation and that such Investment would be permitted under Section 4.07 hereof;
(2) any guarantee by OPTI or any Restricted Subsidiary thereof of any Indebtedness of the Subsidiary being so designated shall be deemed to be an Incurrence of Indebtedness by OPTI or such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the RestructuringRestricted Subsidiary (or both, (Bif applicable) at the time of such designation, and such Incurrence of Indebtedness would be permitted under Section 4.09 hereof; and
(3) such Subsidiary does not hold any Liens on any property of OPTI or any Restricted Subsidiary thereof; provided, further, that such designation shall only be permitted if the members Restricted Subsidiary otherwise meets the definition of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses)an Unrestricted Subsidiary.
(b) The Board of Directors of OPTI may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i1) no Default such designation shall have occurred and be continuing at the time deemed to be an Incurrence of or after giving effect to such designation;
(ii) Indebtedness by a Restricted Subsidiary of OPTI of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period;
(2) all outstanding Investments owned by such Unrestricted Subsidiary shall be deemed to be made as of the time of such designation and such designation shall only be permitted if such Investments would be permitted under Section 4.07 hereof;
(3) all Liens upon property or assets of such Unrestricted Subsidiary existing at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.064.12 hereof;
(iii4) any Lien on the property no Default or Event of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation Default would be permitted to be Incurred under Section 4.08;in existence following such designation; and
(iv5) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if 4.16 hereof, such Restricted Unrestricted Subsidiary is not organized under becomes a Guarantor and executes a supplemental indenture in substantially the laws form of Exhibit E hereto and delivers an Opinion of Counsel reasonably satisfactory to the Trustee within 10 Business Days of the PRCdate on which it is designated to the effect that such supplemental indenture has been duly authorized, all Capital Stock executed and delivered and constitutes a legal, valid and binding agreement of such Restricted Subsidiary, enforceable against such Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02in accordance with its terms.
Appears in 2 contracts
Sources: Indenture (Opti Canada Inc), Indenture (Opti Canada Inc)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors of ▇▇▇▇▇▇▇ may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, Subsidiary if no Default or Event of Default would be in existence following such designation; provided that:
(i1) no Default shall have occurred the aggregate Fair Market Value of all outstanding Investments owned by ▇▇▇▇▇▇▇ and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any its Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
the Subsidiary so designated (vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than including any Investment deemed to have been made guarantee by the Company ▇▇▇▇▇▇▇ or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of any Indebtedness of such Subsidiaries in the Commercial Properties Group Subsidiary) will be deemed to be an Investment made as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that time of the designation and that such Investment would be permitted under Section 4.07 hereof;
(2) any guarantee by ▇▇▇▇▇▇▇ or any Restricted Subsidiary thereof of any Indebtedness of the Subsidiary being so designated will be deemed to be an Incurrence of Indebtedness by ▇▇▇▇▇▇▇ or such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the RestructuringRestricted Subsidiary (or both, (Bif applicable) at the time of such designation, and such Incurrence of Indebtedness would be permitted under Section 4.09 hereof; and
(3) such Subsidiary does not hold any Liens on any property of ▇▇▇▇▇▇▇ or any Restricted Subsidiary thereof; provided, further, that such designation will only be permitted if the members Restricted Subsidiary otherwise meets the definition of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses)an Unrestricted Subsidiary.
(b) The Board of Directors of ▇▇▇▇▇▇▇ may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i1) no Default shall have occurred and such designation will be continuing at the time deemed to be an Incurrence of or after giving effect to such designation;
(ii) Indebtedness by a Restricted Subsidiary of ▇▇▇▇▇▇▇ of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period;
(2) all outstanding Investments owned by such Unrestricted Subsidiary will be deemed to be made as of the time of such designation and such designation will only be permitted if such Investments would be permitted under Section 4.07 hereof;
(3) all Liens upon property or assets of such Unrestricted Subsidiary existing at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.064.12 hereof;
(iii4) any Lien on the property no Default or Event of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation Default would be permitted to be Incurred under Section 4.08;in existence following such designation; and
(iv5) such Unrestricted Subsidiary is not becomes a Subsidiary Guarantor and executes a supplemental indenture in substantially the form of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws Exhibit C hereto and delivers an Opinion of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver Counsel reasonably satisfactory to the Trustee a within 10 Business Days of the date on which it is designated to the effect that such supplemental indenture to this Indenture by which such Restricted Subsidiary shall become has been duly authorized, executed and delivered and constitutes a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRClegal, all Capital Stock valid and binding agreement of such Restricted Subsidiary, enforceable against such Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02in accordance with its terms.
Appears in 2 contracts
Sources: Indenture (Compton Petroleum Holdings CORP), Indenture (Compton Petroleum Holdings CORP)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board By resolution of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined Borrower, any Subsidiary (or entity to become a Subsidiary) of the Borrower may be designated to be an Unrestricted Subsidiary if:
(i) the Subsidiary (or entity to become a Subsidiary) to be so designated does not (directly, or indirectly through its Subsidiaries) own any Equity Interests or Indebtedness of, or own or hold any Lien on any property of, the Borrower or any Restricted Subsidiary and does not have any Indebtedness other than Non-Recourse Indebtedness;
(ii) Borrower would be permitted under Section 8.03 to make a Restricted Payment in good faith that an amount equal to the designation Fair Market Value of the Investment in such Subsidiary (or entity to become a Subsidiary). For the purposes of this provision, in the event the Fair Market Value of such Subsidiaries assets exceeds $3,000,000, such Fair Market Value shall be determined by an Independent Financial Advisor;
(iii) no Default or Event of Default exists or would result therefrom;
(iv) in the Commercial Properties Group case of any Unrestricted Subsidiary directly owned by any of its Subsidiaries that is not an Unrestricted Subsidiary, 100% of the Equity Interests of such newly-designated Unrestricted Subsidiary are owned by such Subsidiary; and
(v) such Unrestricted Subsidiary is or becomes party to the Tax Sharing Agreement. Unless so designated as an Unrestricted Subsidiaries is necessary to obtain approval from Subsidiary, any Person that becomes a Qualified Exchange for Subsidiary of the Restructuring, (B) Borrower will be classified as a Restricted Subsidiary at the time of it becomes a Subsidiary. If at any time an Unrestricted Subsidiary ceases to satisfy clause (a)(i) above, unless the Borrower is then able to redesignate such designationUnrestricted Subsidiary as a Restricted Subsidiary in accordance with this Section 7.15, the members Borrower shall be in default of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses)this Section 7.15.
(b) The Board Except as provided in this Section 7.15, and except as otherwise set forth in the definition of Directors an “Unrestricted Subsidiary,” no Restricted Subsidiary may designate be redesignated as an Unrestricted Subsidiary. In addition, neither the Borrower nor any Restricted Subsidiary shall at any time be directly or indirectly liable for any Indebtedness that provides that the holder thereof may (with the passage of time or notice or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its stated maturity upon the occurrence of a default with respect to any Indebtedness, Lien or other obligation of any Unrestricted Subsidiary (including any right to take enforcement action against such Unrestricted Subsidiary).
(c) By resolution of the Board of Directors, any Unrestricted Subsidiary may be designated to be a Restricted SubsidiarySubsidiary if, provided that:
(i) no Default shall have occurred and be continuing at the time of or immediately after giving pro forma effect to such designation;
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02.,
Appears in 2 contracts
Sources: Second Lien Credit Agreement (HUGHES Telematics, Inc.), Credit Agreement (HUGHES Telematics, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors may designate any Restricted Subsidiary to be Unless designated as an Unrestricted Subsidiary, each newly acquired or created Subsidiary or a Restricted Subsidiary shall be a Restricted Subsidiary. Any Restricted Subsidiary may be designated by the Company as an Unrestricted Subsidiary; provided that:
(i1) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made Guarantee by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation thereof of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors any Indebtedness of the Subsidiary being so designated shall be deemed to be an incurrence of Indebtedness by the Company has determined in good faith that the designation of or such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the RestructuringRestricted Subsidiary (or both, (Bif applicable) at the time of such designation, and such incurrence of Indebtedness would be permitted under Section 1007;
(2) the members aggregate Fair Market Value of all outstanding Investments owned by the Restructuring Group remain Company and its Restricted Subsidiaries in the Subsidiary being so designated (including any Guarantee by the Company or any Restricted Subsidiary of the Company, and (Cany Indebtedness of such Subsidiary) at shall be deemed to be a Restricted Investment made as of the time of such designation, the members designation and that such Investment would be permitted under Section 1009;
(3) such Subsidiary does not hold any Liens (other than Permitted Liens) on any property of the Restructuring Group remain primarily engaged Company or any Restricted Subsidiary thereof; and
(4) no Default or Event of Default would be in the Permitted Businesses)existence following such designation.
(b) Any designation of a Restricted Subsidiary as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee an Officers’ Certificate of the Company certifying that such designation complied with the preceding conditions and was permitted by this Indenture.
(c) The Board of Directors Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i1) no Default such designation shall have occurred and be continuing at the time deemed to be an incurrence of or after giving effect to such designation;
(ii) Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if such Indebtedness is permitted under Section 1007, calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable four-quarter reference period;
(2) all outstanding Investments owned by such Unrestricted Subsidiary shall be deemed to be made as of the time of such designation and such Investments shall only be permitted if such Investments would be permitted under Section 1009;
(3) all Liens upon property or assets of such Unrestricted Subsidiary existing at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.101008; and
(vi4) if no Default or Event of Default would be in existence following such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02designation.
Appears in 2 contracts
Sources: Indenture (AMC Networks Inc.), Indenture (WE TV Studios LLC)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Parent Borrower’s Board of Directors may designate any Restricted of its Subsidiaries, including any newly formed Subsidiary or any Person that will become a Subsidiary of Parent Borrower by way of acquisition, to be an “Unrestricted Subsidiary, provided that,” upon which designation such Unrestricted Subsidiary shall cease to be deemed a “Subsidiary” within the meaning of this Agreement. Such designation subject to the following conditions:
(i) such Subsidiary has no Indebtedness other than Indebtedness that is non-recourse to the property and assets of Holdings, Parent Borrower or any other Subsidiary;
(ii) such Subsidiary has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of Parent Borrower or any of its other Subsidiaries;
(iii) the designation of such Subsidiary as an Unrestricted Subsidiary would not cause a Default or Event of Default;
(iv) Parent Borrower and its Subsidiaries shall be in pro forma compliance with the covenant set forth in Section 6.7 (b) as of the last day of the most recently ended Fiscal Quarter for which a Compliance Certificate has been (or was required to have occurred and be continuing at the time of or been) delivered to Administrative Agent pursuant to Section 5.1(c) after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;; and
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed after giving effect to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members Consolidated Total Assets of all Unrestricted Subsidiaries and their respective Subsidiaries shall be no greater than 4.00% of the Restructuring Group remain Subsidiaries Consolidated Total Assets of the Company, Parent Borrower and its subsidiaries (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businessesincluding Unrestricted Subsidiaries).
(b) The Upon any such designation of a Subsidiary of Parent Borrower as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Parent Borrower and its Subsidiaries in the newly designated Unrestricted Subsidiary will be deemed to be an Investment made as of the time of that designation and will reduce the amount available for Investments under Section 6.6.
(c) Parent Borrower’s Board of Directors may designate redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided thatSubsidiary of Parent Borrower subject to the following conditions:
(i1) no Default shall have occurred such Subsidiary executes and be continuing at the time of or after giving effect delivers to such designation;Administrative Agent a Counterpart Agreement providing for a Guarantee; and
(ii2) the redesignation of such Unrestricted Subsidiary as a Subsidiary would not cause a Default or Event of Default; it being understood that any Indebtedness Indebtedness, Liens, agreements or transactions of such Unrestricted Subsidiary outstanding at the time of such designation which will redesignation shall be deemed to have been Incurred by be incurred or entered into at such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02time.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (IMS Health Holdings, Inc.), Credit and Guaranty Agreement (IMS Health Holdings, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors General Partner may designate any Restricted Subsidiary of the Partnership to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, provided that:
(i) no Default shall have occurred all outstanding Investments owned by the Partnership and its Restricted Subsidiaries in the Subsidiary so designated will be continuing at deemed to be an Investment made as of the time of or after giving effect to such designation;
(ii) neither designation and will reduce the Company nor any amount available for Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred Payments under Section 4.06 4.08(a), Permitted Investments or Permitted Business Investments, as applicable. All such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiaryoutstanding Investments will be valued at their fair market value, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made determined by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that General Partner, at the designation time of such designation. That designation will only be permitted if such Restricted Payment, Permitted Investments or Permitted Business Investments would be permitted under this Indenture at that time and such Restricted Subsidiary otherwise complies with the definition of an Unrestricted Subsidiary. All Subsidiaries in the Commercial Properties Group of such an Unrestricted Subsidiary shall be also thereafter constitute Unrestricted Subsidiaries. A Subsidiary may not be designated as an Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) Subsidiary unless at the time of such designation, the members (x) it has no Indebtedness other than Non-Recourse Debt; (y) no portion of the Restructuring Group remain Indebtedness or any other obligation of such Subsidiary (whether contingent or otherwise and whether pursuant to the terms of such Indebtedness or the terms governing the organization and operation of such Subsidiary or by law) (A) is guaranteed by the Partnership or any of its other Restricted Subsidiaries, except as such Indebtedness is permitted by Sections 4.08 and 4.09, (B) is recourse to or obligates the Partnership or any of its Restricted Subsidiaries in any way (including any "claw-back", "keep-well' or "make-well" agreements or other agreements, arrangements or understandings to maintain the financial performance or results of the Companyoperations of such Subsidiary, except as such Indebtedness or Investment is permitted by Sections 4.08 and 4.09), or (C) at subjects any property or assets of the time Partnership or any of its other Restricted Subsidiaries, directly or indirectly, contingently or otherwise, to the satisfaction thereof; and (z) no Equity Interests of a Restricted Subsidiary are held by such Subsidiary, directly or indirectly. Upon the designation of a Restricted Subsidiary that is a Subsidiary Guarantor as an Unrestricted Subsidiary, the Guarantee of such designation, entity shall be released and the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) Trustee shall be authorized to take such actions as may be appropriate to reflect such release. The Board of Directors of the General Partner may designate redesignate any Unrestricted Subsidiary to be a Restricted SubsidiarySubsidiary if a Default or Event of Default is not continuing, the redesignation would not cause a Default or Event of Default and provided that:
(i) no Default shall have occurred and be continuing , if at the time of or such designation such Subsidiary is a Subsidiary Guarantor, after giving effect to such designation;
(ii) any , the Partnership and its remaining Restricted Subsidiaries could incur at least $1.00 of additional Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary4.09(a);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02.. 72
Appears in 2 contracts
Sources: Indenture (El Paso Energy Partners Lp), Indenture (First Reserve Gas LLC)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors of the Company may designate any Restricted Subsidiary (other than a Co-Issuer) of the Company to be an Unrestricted Subsidiary, ; provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made Guarantee by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation thereof of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors any Indebtedness of the Subsidiary being so designated will be deemed to be an incurrence of Indebtedness by the Company has determined in good faith that the designation of or such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the RestructuringRestricted Subsidiary (or both, (Bif applicable) at the time of such designation, and such incurrence of Indebtedness would be permitted under Section 4.09;
(ii) the members aggregate value (as determined in accordance with this Indenture) of all outstanding Investments owned by the Restructuring Group remain Company and its Restricted Subsidiaries in the Subsidiary being so designated (including any Guarantee by the Company or any Restricted Subsidiary thereof of the Company, and (Cany Indebtedness of such Subsidiary) at will be deemed to be an Investment made as of the time of such designation, designation and that such Investment would be permitted under Section 4.08 hereof;
(iii) the members Subsidiary being so designated has not Guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Restructuring Group remain primarily engaged Company or any of its Restricted Subsidiaries, except (A) to the extent such Guarantee or credit support would be released upon such designation or (B) a pledge of the Equity Interests of the Unrestricted Subsidiary that is the obligor thereunder; and
(iv) no Default or Event of Default would be in the Permitted Businesses)existence following such designation.
(b) Any designation of a Restricted Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by delivering to the Trustee the Board Resolution giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by this Indenture. If, at any time, any Unrestricted Subsidiary would fail to meet any of the preceding requirements described in clause (iii) above, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness, Investments, or Liens on the property, of such Subsidiary will be deemed to be incurred or made by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness, Investments or Liens are not permitted to be incurred or made as of such date under this Indenture, the Issuers will be in default under this Indenture.
(c) The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i) no Default shall have occurred such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness (including any Obligations that are non-recourse) of such Unrestricted Subsidiary and such designation will only be continuing at the time of or after giving effect to permitted if such designation;Indebtedness is permitted under Section 4.09 hereof; and
(ii) any Indebtedness no Default or Event of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation Default would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of in existence following such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02designation.
Appears in 2 contracts
Sources: Indenture (Coty Inc.), Indenture (Coty Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, ; provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or any Subsidiary Guarantor or Disqualified or Preferred Stock of another a Restricted Subsidiary that is not a Subsidiary Guarantor or hold any IndebtednessIndebtedness of, or any Lien on any propertyproperty of, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 4.05 or such Lien would violate Section 4.084.07;
(viii) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as to be Unrestricted Subsidiaries in accordance with this Section 4.18(a);
(iv) none of the Company or any Restricted Subsidiary Guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary; and
(viv) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses)4.06.
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will shall be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.064.05;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will shall be deemed to have been Incurred incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred incurred under Section 4.084.07;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);; and
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; andGuarantor.
(vic) if such Any designation by the Board of Directors of a Subsidiary as a Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Unrestricted Subsidiary shall be pledged evidenced to the extent required under Section 10.02Trustee by promptly filing with the Trustee a copy of the Board Resolution giving effect to the designation and an Officers’ Certificate certifying that the designation complied with the foregoing provisions.
Appears in 2 contracts
Sources: Indenture (eHi Car Services LTD), Indenture (eHi Car Services LTD)
Designation of Restricted and Unrestricted Subsidiaries. The Company may designate after the Issue Date any Subsidiary (other than the Co-Obligor) (including any newly acquired or newly formed Subsidiary) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(a) The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, provided that:
(i) no Default shall have or Event of Default has occurred and be is continuing at the time of or after giving effect to such designationDesignation;
(iib) neither the Subsidiary to be so designated and its Subsidiaries do not at the time of Designation own any Capital Stock or Indebtedness of, or own or hold any Lien on any Property of, the Company nor or any Restricted other Subsidiary guarantees or provides credit support for of the Indebtedness Company that is not a Subsidiary of such Restricted Subsidiarythe Subsidiary so designated;
(iiic) such Restricted the Subsidiary to be so designated and its Subsidiaries do not at the time of Designation have and do not thereafter Incur any Indebtedness pursuant to which the lender has no outstanding Indebtedness that could trigger a cross-default recourse to any of the Indebtedness assets of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a)Subsidiaries; and
(vid) either (x) the Investment deemed Subsidiary to have been made thereby in be so designated has total consolidated assets of $1,000 or less or (y) if such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated has consolidated assets greater than $1,000, then such Designation would be permitted under Section 4.07. The Company may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a “Revocation”) only if, immediately after giving effect such Revocation:
(e) (x) the Company could Incur at least $1.00 of additional Indebtedness under Section 4.09(a) or (y) the Fixed Charge Coverage Ratio would be greater than immediately prior to such Revocation, in each case on a pro forma basis taking into account such Revocation;
(f) all Liens of such Unrestricted Subsidiary outstanding immediately following such Revocation would, if Incurred at such time, have been permitted to be made under Section 4.07 Incurred for all purposes of this Indenture; and
(other than any Investment deemed g) no Default or Event of Default has occurred and is continuing after giving effect to have been made such Revocation. Each Designation and Revocation must be evidenced by promptly delivering to the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation Trustee a board resolution of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) Designation or Revocation, as the case may be, and an Officers’ Certificate certifying compliance with the preceding provisions. A Revocation will be deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors General Partner may designate any Restricted Subsidiary of the Partnership to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, provided that:
(i) no Default shall have occurred all outstanding Investments owned by the Partnership and its Restricted Subsidiaries in the Subsidiary so designated will be continuing at deemed to be an Investment made as of the time of or after giving effect to such designation;
(ii) neither designation and will reduce the Company nor any amount available for Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred Payments under Section 4.06 4.08(a), Permitted Investments or Permitted Business Investments, as applicable. All such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiaryoutstanding Investments will be valued at their fair market value, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made determined by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that General Partner, at the designation time of such designation. That designation will only be permitted if such Restricted Payment, Permitted Investments or Permitted Business Investments would be permitted under this Indenture at that time and such Restricted Subsidiary otherwise complies with the definition of an Unrestricted Subsidiary. All Subsidiaries in the Commercial Properties Group of such an Unrestricted Subsidiary shall be also thereafter constitute Unrestricted Subsidiaries. A Subsidiary may not be designated as an Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) Subsidiary unless at the time of such designation, the members (x) it has no Indebtedness other than Non-Recourse Debt; (y) no portion of the Restructuring Group remain Indebtedness or any other obligation of such Subsidiary (whether contingent or otherwise and whether pursuant to the terms of such Indebtedness or the terms governing the organization and operation of such Subsidiary or by law) (A) is guaranteed by the Partnership or any of its other Restricted Subsidiaries, except as such Indebtedness is permitted by Sections 4.08 and 4.09, (B) is recourse to or obligates the Partnership or any of its Restricted Subsidiaries in any way (including any "claw-back", "keep-well' or "make-well" agreements or other agreements, arrangements or understandings to maintain the financial performance or results of the Companyoperations of such Subsidiary, except as such Indebtedness or Investment is permitted by Sections 4.08 and 4.09, or (C) at the time of such designation, the members subjects any property or assets of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company Partnership or any of its other Restricted Subsidiary shall be pledged to the extent required under Section 10.02.Subsidiaries, directly or indirectly,
Appears in 1 contract
Sources: Indenture (Leviathan Finance Corp)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors General Partner may designate any Restricted Subsidiary of the Partnership to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, provided that:
(i) no Default shall have occurred all outstanding Investments owned by the Partnership and its Restricted Subsidiaries in the Subsidiary so designated will be continuing at deemed to be an Investment made as of the time of or after giving effect to such designation;
(ii) neither designation and will reduce the Company nor any amount available for Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred Payments under Section 4.06 4.08(a), for Permitted Investments or for Permitted Business Investments, as applicable. All such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiaryoutstanding Investments will be valued at their fair market value, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made determined by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that General Partner, at the designation time of such designation. That designation will only be permitted if such Restricted Payment, Permitted Investments or Permitted Business Investments would be permitted under this Indenture at that time and such Restricted Subsidiary otherwise complies with the definition of an Unrestricted Subsidiary. All Subsidiaries in the Commercial Properties Group of such an Unrestricted Subsidiary shall be also thereafter constitute Unrestricted Subsidiaries. A Subsidiary may not be designated as an Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) Subsidiary unless at the time of such designation, the members (x) it has no Indebtedness other than Non-Recourse Debt; (y) no portion of the Restructuring Group remain Indebtedness or any other obligation of such Subsidiary (whether contingent or otherwise and whether pursuant to the terms of such Indebtedness or the terms governing the organization and operation of such Subsidiary or by law) (A) is guaranteed by the Partnership or any of its other Restricted Subsidiaries, except as such Indebtedness is permitted by Sections 4.08 and 4.09, (B) is recourse to or obligates the Partnership or any of its Restricted Subsidiaries in any way (including any "claw-back", "keep-well' or "make-well" agreements or other agreements, arrangements or understandings to maintain the financial performance or results of the Companyoperations of such Subsidiary, except as such Indebtedness or Investment is permitted by Sections 4.08 and 4.09), or (C) at subjects any property or assets of the time Partnership or any of its other Restricted Subsidiaries, directly or indirectly, contingently or otherwise, to the satisfaction thereof; and (z) no Equity Interests of a Restricted Subsidiary are held by such Subsidiary, directly or indirectly. Upon the designation of a Restricted Subsidiary that is a Subsidiary Guarantor as an Unrestricted Subsidiary, the Guarantee of such designation, entity shall be released and the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) Trustee shall be authorized to take such actions as may be appropriate to reflect such release. The Board of Directors of the General Partner may designate redesignate any Unrestricted Subsidiary to be a Restricted SubsidiarySubsidiary if a Default or Event of Default is not continuing, the redesignation would not cause a Default or Event of Default and provided that:
(i) no Default shall have occurred and be continuing , if at the time of or such designation such Subsidiary is a Subsidiary Guarantor, after giving effect to such designation;
(ii) any , the Partnership and its remaining Restricted Subsidiaries could incur at least $1.00 of additional Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary4.09(a);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02.. 72
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors may designate any Restricted Subsidiary to be as an Unrestricted Subsidiary, provided thatSubsidiary if:
(i1) no Default shall have occurred and the Subsidiary to be continuing at so designated does not own any Capital Stock, Redeemable Stock or Indebtedness of, or own or hold any Lien on any property or assets of, the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company Issuer or any other Restricted Subsidiary;
(iv2) such Restricted designation complies with Section 4.07 hereof; and
(3) such Subsidiary has not at the time of designation, and does not own thereafter, create, Incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Disqualified Stock Indebtedness pursuant to which the lender has recourse to any of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, assets of the Company Issuer or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;.
(vb) such Restricted Subsidiary does not own any Voting Stock For the avoidance of another Restricted Subsidiarydoubt, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would neither UTC nor UTL shall be permitted to be made under designated as an Unrestricted Subsidiary.
(c) For purposes of Section 4.07 hereof, “Investment” will include the portion (other than any Investment deemed proportionate to have been made by the Company or any Issuer’s equity interest in a Restricted Subsidiary in to be designated as an Unrestricted Subsidiary) of the Subsidiaries in Fair Market Value of the Commercial Properties Group in connection with net assets of such Restricted Subsidiary at the Restructuring time that such Restricted Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a re-designation of such Subsidiaries Subsidiary as a Restricted Subsidiary the Issuer shall be deemed to continue to have a permanent “Investment” in the Commercial Properties Group as an Unrestricted Subsidiaries, provided that Subsidiary in an amount (Aif positive) equal to (a) the Board of Directors of the Company has determined Issuer’s “Investment” in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) Subsidiary at the time of such designation, designation less (b) the members portion (proportionate to the Issuer’s equity interest in such Subsidiary) of the Restructuring Group remain Subsidiaries Fair Market Value of the Company, and (C) net assets of such Subsidiary at the time of such designationSubsidiary is so re-designated a Restricted Subsidiary. Unless so designated as an Unrestricted Subsidiary in accordance with the above sentence, the members any Person that becomes a Subsidiary of the Restructuring Group remain primarily engaged in the Permitted Businesses)Issuer or of any Restricted Subsidiary will be classified as a Restricted Subsidiary.
(bd) The Board of Directors may designate any Unrestricted Subsidiary to be as a Restricted Subsidiary, provided thatSubsidiary if:
(i1) no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(2) (i) the Issuer could Incur at least $1.00 of additional Indebtedness pursuant to the time Consolidated Interest Expense Coverage Ratio test set forth in clause (a) of Section 4.09 hereof; or after giving effect (ii) the Consolidated Interest Expense Coverage Ratio for the Issuer and its Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such designation;, in each case on a pro forma basis taking into account such designation; and
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv3) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);.
(ve) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon Any such designation execute and deliver or re-designation by the Board of Directors will be evidenced to the Trustee by filing with the Trustee a supplemental indenture resolution of the Board of Directors giving effect to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor designation or a JV Subsidiary Guarantor to re-designation and an Officer’s Certificate that:
(1) certifies that such designation or re-designation complies with the extent required under Section 11.10foregoing provisions; and
(vi2) if gives the effective date of such Restricted Subsidiary is not organized under designation or re-designation; such filing with the laws Trustee to occur within 30 days after the end of the PRCfinancial quarter of the Issuer in which such designation or re-designation is made (or, all Capital Stock in the case of a designation or re-designation made during the last financial quarter of the Issuer’s financial year, within 45 days after the end of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02financial year).
Appears in 1 contract
Sources: Indenture (UTAC Holdings Ltd.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors may designate any Restricted Subsidiary of the Company to be an Unrestricted SubsidiarySubsidiary if (a) the Subsidiary to be so designated does not own any Capital Stock or Debt of, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor own or hold any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of Lien on any Property of, the Company or any other Restricted Subsidiary;
, (ivb) such Restricted the Subsidiary does to be so designated is not own obligated under any Disqualified Stock Debt, Lien or other obligation that, if in default, would result (with the passage of time or notice or otherwise) in a default on any Debt of the Company or Disqualified or Preferred Stock of another any Restricted Subsidiary and (c) either (i) the Subsidiary to be so designated has total assets of $1,000 or hold less or (ii) such designation is effective immediately upon such entity becoming a Subsidiary of the Company. Unless so designated as an Unrestricted Subsidiary, any Indebtedness, or any Lien on any property, Person that becomes a Subsidiary of the Company or any will be classified as a Restricted Subsidiary; PROVIDED, if HOWEVER, that such Disqualified or Preferred Stock or Indebtedness could Subsidiary shall not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such designated a Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated shall be automatically classified as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated an Unrestricted Subsidiary if either of the requirements set forth in clauses (x) and each other newly designated Unrestricted Subsidiary being concurrently redesignated would (y) of the immediately following paragraph will not be permitted satisfied after giving pro forma effect to be made under Section 4.07 (other than any Investment deemed to have been made by such classification. Except as provided in the Company or any first sentence of this paragraph, no Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group may be redesignated as an Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) Subsidiary. The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted SubsidiarySubsidiary if, provided that:
immediately after giving pro forma effect to such designation, (ix) the Company could Incur at least $1.00 of additional Debt pursuant to clause (a) of the first paragraph of Section 4.03 and (y) no Default or Event of Default shall have occurred and be continuing at or would result therefrom. Any such designation or redesignation by the time Board of or after Directors will be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such designation;
designation or redesignation and an Officers' Certificate (iia) any Indebtedness of certifying that such Unrestricted Subsidiary outstanding at designation or redesignation complies with the time foregoing provisions and (b) giving the effective date of such designation or redesignation, such filing with the Trustee to occur within 45 days after the end of the fiscal quarter of the Company in which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as designation or redesignation is made (or, in the case of a result designation or redesignation made during the last fiscal quarter of the Company's fiscal year, within 90 days after the end of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiaryfiscal year);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02.
Appears in 1 contract
Sources: Indenture (Metallurg Holdings Inc)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors of the Borrower may designate any Restricted Subsidiary of the Borrower to be an Unrestricted Subsidiary, ; provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any IndebtednessThe aggregate fair market value, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries determined in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made good faith by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that Borrower, of all outstanding Investments owned by the designation of such Borrower and its Restricted Subsidiaries in the Commercial Properties Group Subsidiary being so designated (including any Guarantee by the Borrower or any Restricted Subsidiary thereof of any Indebtedness of such Subsidiary, but excluding any Investment that was a Restricted Payment or Permitted Investment (other than pursuant to clauses (1) or (3) of the definition thereof) when made) will be deemed to be an Investment made as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at of the time of such designationdesignation and that such Investment would be permitted under Section 7.06 hereof, the members including as a Permitted Investment.
(ii) Such Subsidiary does not hold any Liens on any property of the Restructuring Group remain Subsidiaries Borrower or any Restricted Subsidiary thereof;
(iii) The Subsidiary being so designated:
(A) Is not party to any agreement, contract, arrangement or understanding with the Borrower or any Restricted Subsidiary of the CompanyBorrower unless the terms of any such agreement, and (C) contract, arrangement or understanding are no less favorable to the Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Borrower or would be permitted under Section 7.08 hereof; and Document Number: 1345735 -99-
(B) Is a Person with respect to which neither the Borrower nor any of its Restricted Subsidiaries has any direct or indirect obligation to subscribe for additional Equity Interests, except as would be permitted under Section 7.06 hereof; and
(iv) No Event of Default would be in existence following such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) Any designation of a Restricted Subsidiary of the Borrower as an Unrestricted Subsidiary will be evidenced to the Administrative Agent by filing with the Administrative Agent the Board Resolution giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by this Agreement. If, at any time, any Unrestricted Subsidiary (x) would fail to meet any of the preceding requirements described in subclauses (A) or (B) of clause (iii) of Section 7.13(a), it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Agreement and any Indebtedness, Investments, or Liens on the property, of such Subsidiary will be deemed to be Incurred or made by a Restricted Subsidiary of the Borrower as of such date and, if such Indebtedness, Investments or Liens are not permitted to be Incurred or made as of such date under this Agreement, the Borrower will be in Default under this Agreement.
(c) The Board of Directors of the Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i) no Default shall have occurred Such designation will be deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of the Borrower of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be continuing at permitted if such Indebtedness is permitted under the time of or after giving effect to such designationcovenant described under Section 7.03 hereof;
(ii) any Indebtedness All outstanding Investments owned by such Unrestricted Subsidiary will be deemed to be made as of the time of such designation and such designation will only be permitted if such Investments would be permitted under Section 7.06 hereof, including as Permitted Investments;
(iii) All Liens upon property or assets of such Unrestricted Subsidiary outstanding existing at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;7.01 hereof; and
(iv) No Default or Event of Default would be in existence following such designation. Notwithstanding the provisions set forth above with respect to “Unrestricted Subsidiaries”, the Borrower shall not designate any Subsidiary is not a Subsidiary of another as an Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if that such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company directly or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02indirectly owns a Refinery.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Western Refining, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors of Uniti may designate any Restricted Subsidiary of Uniti (other than either other Issuer and CSL National) to be an Unrestricted Subsidiary, ; provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made guarantee by the Company Uniti or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors any Indebtedness of the Company has determined in good faith that the designation Subsidiary being so designated will be deemed to be an incurrence of Indebtedness by Uniti or such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the RestructuringRestricted Subsidiary (or both, (Bif applicable) at the time of such designation, and such incurrence of Indebtedness would be permitted under Section 4.09 hereof;
(ii) the members aggregate fair market value (as determined in good faith by Uniti) of all outstanding Investments owned by Uniti and its Restricted Subsidiaries in the Restructuring Group remain Subsidiaries Subsidiary being so designated (including any guarantee by Uniti or any Restricted Subsidiary thereof of the Company, and (Cany Indebtedness of such Subsidiary) at will be deemed to be an Investment made as of the time of such designationdesignation and that such Investment would be permitted under Section 4.07 hereof;
(iii) the Subsidiary being so designated
(A) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of Uniti or any of its Restricted Subsidiaries, except (i) to the members extent such guarantee or credit support would be released upon such designation or (ii) a pledge of the Restructuring Group remain primarily engaged Equity Interests of the Unrestricted Subsidiary that is the obligor thereunder; and
(B) is a Person with respect to which neither Uniti nor any of its Restricted Subsidiaries has any direct or indirect obligation (i) to subscribe for additional Equity Interests or (ii) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and
(iv) no Default or Event of Default would be in the Permitted Businesses)existence following such designation.
(b) Any designation of a Restricted Subsidiary of Uniti as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee the Board Resolution giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by this Indenture. If, at any time, any Unrestricted Subsidiary would fail to meet any of the requirements described in clause (iii) of Section 4.18(a), it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness, Investments, or Liens on the property, of such Subsidiary will be deemed to be incurred or made by a Restricted Subsidiary of Uniti as of such date and, if such Indebtedness, Investments or Liens are not permitted to be incurred or made as of such date under this Indenture, Uniti will be in default under this Indenture.
(c) The Board of Directors of Uniti may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i) no Default shall have occurred such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Uniti of any outstanding Indebtedness (including any Obligations that are non-recourse) of such Unrestricted Subsidiary and such designation will only be continuing at the time of or after giving effect to permitted if such designation;Indebtedness is permitted under Section 4.09 hereof; and
(ii) any Indebtedness no Default or Event of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation Default would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of in existence following such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02designation.
Appears in 1 contract
Sources: Indenture (Uniti Group Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors Borrower may designate any Restricted Subsidiary Subsidiary, including a newly acquired or created Subsidiary, to be an Unrestricted SubsidiarySubsidiary if the sum of the total assets of such Subsidiary (or, if any such Subsidiary itself has Subsidiaries, the consolidated total assets of such Subsidiary and its Consolidated Subsidiaries) and every other Unrestricted Subsidiary (other than Cornerstone and the Excluded Partnerships), in each case determined as of the date of the Most Recent Financial Statements, does not exceed 5% of the consolidated total assets of the Borrower and its Consolidated Subsidiaries (excluding, for purposes of such calculation but only to the extent included therein, (x) the assets of Cornerstone unless at such time the Equity Interests of Cornerstone are subject to a pledge or other security interest in favor of the Agent for the benefit of the Lenders as contemplated by Section 5.09(f) and (y) the assets of the Excluded Partnerships) and the designation would not cause a Default; provided that:
(i) no Default shall have occurred and be continuing at such Subsidiary does not own any capital stock of the time of Borrower or after giving effect to such designationany Restricted Subsidiary;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any IndebtednessIndebtedness of, or any Lien on any propertyproperty of, of the Company Borrower or any Restricted Subsidiary, if such Disqualified in each case except to the extent permitted by Section 7.01 or Preferred Stock or Indebtedness could not 7.02, respectively;
(iii) at the time of designation, the designation would be Incurred permitted under Section 4.06 7.08;
(iv) to the extent the Indebtedness of the Subsidiary is not Non-Recourse Debt, any Guarantee or such Lien would violate Section 4.08other credit support thereof by the Borrower or any Restricted Subsidiary is permitted under Sections 7.01 and 7.08;
(v) such the Subsidiary is not party to any transaction or arrangement with the Borrower or any Restricted Subsidiary does that would not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this be permitted under Section 4.18(a)7.04; and
(vi) neither the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or Borrower nor any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors has any obligation to subscribe for additional Equity Interests of the Company has determined in good faith that the designation Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor operating results except to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned permitted by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02Sections 7.01 and 7.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board board of Directors directors of Axiall may at any time designate any Restricted Subsidiary to be of Axiall as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided, provided that:
that (i) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing at the time of or continuing, (ii) after giving effect to such designation;
(ii) neither , the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
Borrower shall be in pro forma compliance with Section 6.1, (iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted neither Axiall nor SpinCo may be designated as an Unrestricted Subsidiary;
, (iv) such no subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” (or the equivalent term) for the purpose of the ABL Credit Agreement, Secured Notes or RMT Notes, (v) as of the date of the designation thereof, no Unrestricted Subsidiary does not shall own any Disqualified Stock of the Company in Axiall or Disqualified or Preferred Stock of another its Restricted Subsidiary Subsidiaries or hold any IndebtednessIndebtedness of, or any Lien on any propertyproperty of Axiall or its Restricted Subsidiaries, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the holder of any Indebtedness of any Unrestricted Subsidiary shall not have any recourse to Axiall or its Subsidiaries with respect to such Indebtedness; provided, that this clause (vi) shall not apply to the extent that (x) such Unrestricted Subsidiary’s principal objective is constructing, acquiring, owning, refurbishing, upgrading or operating an Ethylene Cracker Facility, (y) any Liens granted in connection with any credit support or guarantee provided by Axiall or its Subsidiaries in connection therewith are permitted under Section 5.1 and (z) the percentage of credit support provided by or direct or indirect liability of the Borrower or any of its Restricted Subsidiaries in respect of such Indebtedness is less than or equal to the Borrower’s or Restricted Subsidiary’s percentage ownership of the Stock of such Unrestricted Subsidiary. The designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment deemed by Axiall therein at the date of designation in an amount equal to have been made thereby the portion (proportionate to Axiall’s equity interest in such newly designated Unrestricted Subsidiary) of the fair market value of the net assets of such Subsidiary (and each other newly designated Unrestricted Subsidiary being concurrently redesignated would such designation shall only be permitted to be made the extent such Investment is permitted under Section 4.07 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring 5.4); provided, that upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) any Indebtedness redesignation of such Unrestricted Subsidiary outstanding at the time of such designation which will as a Subsidiary, Axiall shall be deemed to continue to have been Incurred by a permanent Investment in a Subsidiary in an amount (if positive) equal to (a) Axiall’s “Investment” in such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such redesignation, less (b) the portion (proportionate to Axiall’s equity interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation. The designation which of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Unrestricted Subsidiary existing at such time and a return on any Investment by Axiall in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value as determined by Axiall in good faith at the date of such designation of Axiall’s or its Subsidiary’s (as applicable) Investment in such Subsidiary. Any designation of a Subsidiary of Axiall as an Unrestricted Subsidiary will be evidenced to Administrative Agent by delivering to Administrative Agent a certified copy of a resolution of the board of directors of Axiall giving effect to such designation and an officers’ certificate certifying that such designation complied with the preceding conditions. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Agreement and any Indebtedness of and Investments by such Subsidiary will be deemed to have been Incurred be incurred by such newly designated a Restricted Subsidiary of Axiall as a result of such designation would be date and, if such Indebtedness is not permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated incurred as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by date under this Agreement, the Company or any other Restricted Subsidiary shall Borrower will be pledged to the extent required under Section 10.02in default of such covenants.
Appears in 1 contract
Sources: Credit Agreement (Axiall Corp/De/)
Designation of Restricted and Unrestricted Subsidiaries. (a) As of the Issue Date, the following Subsidiaries of the Company, including the Subsidiaries that own and operate the Company gaming division, comprising the Golden Nugget Hotels and Casinos in Las Vegas and Laughlin, Nevada, will be “Unrestricted Subsidiaries”: ▇▇▇▇▇▇’▇ Gaming, Inc., a Nevada corporation; Golden Nugget, Inc., a Nevada corporation; LGE, Inc., a Delaware corporation; GNLV, Corp., a Nevada corporation; GNL, Corp., a Nevada corporation; Golden Nugget Experience, LLC, a Nevada limited liability company; LCHLN, Inc., a Delaware corporation; Island Entertainment, Inc., a Texas corporation; Island Hospitality, Inc., a Texas corporation; Nevada Acquisition Corp., a Delaware corporation; Texas Gaming LLC, a Delaware limited liability company; Yorkdale Rainforest Restaurant, Inc., a company organized under the laws of Canada; and Rainforest Café Canada Holdings, Inc, a company organized under the laws of Canada. The Board of Directors of the Company may designate any other Restricted Subsidiary to be an Unrestricted Subsidiary, provided that:
(i) Subsidiary so long as no Default shall have or Event of Default has occurred and is continuing or would occur as a result of such designation. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary after the Issue Date, the aggregate Fair Market Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as Unrestricted will be continuing at deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under one or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees more clauses of Section 4.07 hereof or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness under one or more clauses of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock definition of Permitted Investments, in each case, as determined by the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, Company. That designation will only be permitted if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by at that time and if the Company or any Restricted Subsidiary in otherwise meets the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation definition of such Subsidiaries in the Commercial Properties Group as an Unrestricted Subsidiaries, provided that (A) the Subsidiary. The Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as if that redesignation would not cause a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02Default.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. The Company may designate after the Issue Date Subsidiary (including any newly acquired or newly formed Subsidiary) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(a) The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, provided that:
(i) no Default shall have or Event of Default has occurred and be is continuing at the time of or after giving effect to such designationDesignation;
(iib) neither the Subsidiary to be so designated and its Subsidiaries do not at the time of Designation own any Capital Stock or Indebtedness of, or own or hold any Lien on any Property of, the Company nor or any Restricted other Subsidiary guarantees or provides credit support for of the Indebtedness Company that is not a Subsidiary of such Restricted Subsidiarythe Subsidiary so designated;
(iiic) such Restricted the Subsidiary to be so designated and its Subsidiaries do not at the time of Designation have and do not thereafter Incur any Indebtedness pursuant to which the lender has no outstanding Indebtedness that could trigger a cross-default recourse to any of the Indebtedness assets of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a)Restricted Subsidiaries; and
(vid) either (x) the Investment deemed Subsidiary to have been made thereby in be so designated has total consolidated assets of $1,000 or less or (y) if such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated has consolidated assets greater than $1,000, then such Designation would be permitted under the covenant described above in Section 4.07. The Company may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a “Revocation”) only if, immediately after giving effect such Revocation:
(e) (x) the Company could Incur at least $1.00 of additional Indebtedness under the first paragraph of the covenant described above in Section 4.09 or (y) the Fixed Charge Coverage Ratio of the Company would be greater than immediately prior to such Revocation, in each case on a pro forma basis taking into account such Revocation;
(f) all Liens of such Unrestricted Subsidiary outstanding immediately following such Revocation would, if Incurred at such time, have been permitted to be made under Section 4.07 Incurred for all purposes of this Indenture; and
(other than any Investment deemed g) no Default or Event of Default has occurred and is continuing after giving effect to have been made such Revocation. Each Designation and Revocation must be evidenced by promptly delivering to the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation Trustee a board resolution of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) Designation or Revocation, as the case may be, and an Officers’ Certificate certifying compliance with the preceding provisions. A Revocation will be deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors of the Borrower may designate any Restricted Subsidiary of the Borrower to be an Unrestricted Subsidiary, ; provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any IndebtednessThe aggregate fair market value, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries determined in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made good faith by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that Borrower, of all outstanding Investments owned by the designation of such Borrower and its Restricted Subsidiaries in the Commercial Properties Group Subsidiary being so designated (including any Guarantee by the Borrower or any Restricted Subsidiary thereof of any Indebtedness of such Subsidiary, but excluding any Investment that was a Restricted Payment or Permitted Investment (other than pursuant to clauses (1) or (3) of the definition thereof) when made) will be deemed to be an Investment made as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at of the time of such designationdesignation and that such Investment would be permitted under Section 7.06 hereof, the members including as a Permitted Investment.
(ii) Such Subsidiary does not hold any Liens on any property of the Restructuring Group remain Subsidiaries Borrower or any Restricted Subsidiary thereof;
(iii) The Subsidiary being so designated:
(A) Is not party to any agreement, contract, arrangement or understanding with the Borrower or any Restricted Subsidiary of the CompanyBorrower unless the terms of any such agreement, and (C) contract, arrangement or understanding are no less favorable to the Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Borrower or would be permitted under Section 7.08 hereof; and
(B) Is a Person with respect to which neither the Borrower nor any of its Restricted Subsidiaries has any direct or indirect obligation to subscribe for additional Equity Interests, except as would be permitted under Section 7.06 hereof; and
(iv) No Event of Default would be in existence following such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board Any designation of Directors may designate any a Restricted Subsidiary of the Borrower as an Unrestricted Subsidiary will be evidenced to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after Administrative Agent by filing with the Administrative Agent the Board Resolution giving effect to such designation;
(ii) designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by this Agreement. If, at any Indebtedness of such time, any Unrestricted Subsidiary outstanding at (x) would fail to meet any of the time preceding requirements described in subclauses (A) or (B) of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
clause (iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02.Section
Appears in 1 contract
Sources: Term Loan Credit Agreement (Western Refining, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors General Partner may designate any Restricted Subsidiary of the Partnership to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, provided that:
(i) no Default shall have occurred all outstanding Investments owned by the Partnership and its Restricted Subsidiaries in the Subsidiary so designated will be continuing at deemed to be an Investment made as of the time of or after giving effect to such designation;
(ii) neither designation and will reduce the Company nor any amount available for Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred Payments under Section 4.06 4.08(a), Permitted Investments or Permitted Business Investments, as applicable. All such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiaryoutstanding Investments will be valued at their fair market value, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made determined by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that General Partner, at the designation time of such designation. That designation will only be permitted if such Restricted Payment, Permitted Investments or Permitted Business Investments would be permitted under this Indenture at that time and such Restricted Subsidiary otherwise complies with the definition of an Unrestricted Subsidiary. All Subsidiaries in the Commercial Properties Group of such an Unrestricted Subsidiary shall be also thereafter constitute Unrestricted Subsidiaries. A Subsidiary may not be designated as an Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) Subsidiary unless at the time of such designation, the members (x) it has no Indebtedness other than Non-Recourse Debt; (y) no portion of the Restructuring Group remain Indebtedness or any other obligation of such Subsidiary (whether contingent or otherwise and whether pursuant to the terms of such Indebtedness 59 66 or the terms governing the organization and operation of such Subsidiary or by law) (A) is guaranteed by the Partnership or any of its other Restricted Subsidiaries, except as such Indebtedness is permitted by Sections 4.08 and 4.09, (B) is recourse to or obligates the Partnership or any of its Restricted Subsidiaries in any way (including any "claw-back", "keep-well' or "make-well" agreements or other agreements, arrangements or understandings to maintain the financial performance or results of the Companyoperations of such Subsidiary, except as such Indebtedness or Investment is permitted by Sections 4.08 and 4.09), or (C) at subjects any property or assets of the time Partnership or any of its other Restricted Subsidiaries, directly or indirectly, contingently or otherwise, to the satisfaction thereof; and (z) no Equity Interests of a Restricted Subsidiary are held by such Subsidiary, directly or indirectly. Upon the designation of a Restricted Subsidiary that is a Subsidiary Guarantor as an Unrestricted Subsidiary, the Guarantee of such designation, entity shall be released and the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) Trustee shall be authorized to take such actions as may be appropriate to reflect such release. The Board of Directors of the General Partner may designate redesignate any Unrestricted Subsidiary to be a Restricted SubsidiarySubsidiary if a Default or Event of Default is not continuing, the redesignation would not cause a Default or Event of Default and provided that:
(i) no Default shall have occurred and be continuing , if at the time of or such designation such Subsidiary is a Subsidiary Guarantor, after giving effect to such designation;
(ii) any , the Partnership and its remaining Restricted Subsidiaries could incur at least $1.00 of additional Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary4.09(a);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors may designate any Restricted Subsidiary of the Company to be an Unrestricted SubsidiarySubsidiary if (a) the Subsidiary to be so designated does not own any Capital Stock or Debt of, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor own or hold any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of Lien on any Property of, the Company or any other Restricted Subsidiary;
, (ivb) such Restricted the Subsidiary does to be so designated is not own obligated under any Disqualified Stock Debt, Lien or other obligation that, if in default, would result (with the passage of time or notice or otherwise) in a default on any Debt of the Company or Disqualified or Preferred Stock of another any Restricted Subsidiary and (c) either (i) the Subsidiary to be so designated has total assets of $1,000 or hold less or (ii) such designation is effective immediately upon such entity becoming a Subsidiary of the Company. Unless so designated as an Unrestricted Subsidiary, any Indebtedness, or any Lien on any property, Person that becomes a Subsidiary of the Company or any will be classified as a Restricted Subsidiary; PROVIDED, if HOWEVER, that such Disqualified or Preferred Stock or Indebtedness could Subsidiary shall not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such designated a Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated shall be automatically classified as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated an Unrestricted Subsidiary if either of the requirements set forth in clauses (x) and each other newly designated Unrestricted Subsidiary being concurrently redesignated would (y) of the immediately following paragraph will not be permitted satisfied after giving pro forma effect to be made under Section 4.07 (other than any Investment deemed to have been made by such classification. Except as 40 provided in the Company or any first sentence of this paragraph, no Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group may be redesignated as an Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) Subsidiary. The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted SubsidiarySubsidiary if, provided that:
immediately after giving pro forma effect to such designation, (ix) the Company could Incur at least $1.00 of additional Debt pursuant to Section 4.03(a)(i) and (y) no Default or Event of Default shall have occurred and be continuing at or would result therefrom. Any such designation or redesignation by the time Board of or after Directors will be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such designation;
designation or redesignation and an Officers' Certificate (iia) any Indebtedness of certifying that such Unrestricted Subsidiary outstanding at designation or redesignation complies with the time foregoing provisions and (b) giving the effective date of such designation or redesignation, such filing with the Trustee to occur within 45 days after the end of the fiscal quarter of the Company in which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as designation or redesignation is made (or, in the case of a result designation or redesignation made during the last fiscal quarter of the Company's fiscal year, within 90 days after the end of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiaryfiscal year);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, ; provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any IndebtednessIndebtedness of, or any Lien on any propertyproperty of, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 4.05 or such Lien would violate Section 4.084.07;
(viv) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as to be Unrestricted Subsidiaries in accordance with this Section 4.18(a4.17(a); and
(viv) the Investment deemed to have been made thereby in such newly newly-designated Unrestricted Subsidiary and each other newly newly-designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 4.06 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Restructuring Group upon the designation of the Subsidiaries in the Commercial Properties Restructuring Group as Unrestricted Subsidiaries in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted SubsidiariesRestructuring, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group such Subsidiaries remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group such Subsidiaries remain primarily engaged in the Permitted Businessesbusinesses other than property development business).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly newly-designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.064.05;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred incurred by such newly newly-designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred incurred under Section 4.084.07;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRCPRC and is not an Other Non-Guarantor Subsidiary, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to in accordance with the extent required terms under Section 11.10the Indenture; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, is not an Other Non-Guarantor Subsidiary, is not Xinyuan International (HK) Property Investment Co., Limited or a Subsidiary of a JV Subsidiary Guarantor, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent as required under Section 10.02Article 10.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors Borrower may designate any Restricted Subsidiary (other than any Subsidiary that is an obligor with respect to any Indebtedness incurred pursuant to Section 7.01(a)(xiii) or 7.01(a)(xiv)), including a newly acquired or created Subsidiary, to be an Unrestricted SubsidiarySubsidiary if the sum of (i) the total assets of such Subsidiary (or, if any such Subsidiary itself has Subsidiaries, the consolidated total assets of such Subsidiary and its Consolidated Subsidiaries) and the total assets of every other Unrestricted Subsidiary (other than Cornerstone, the Specified Joint Ventures and the Excluded Partnerships), in each case determined as of the date of the Most Recent Financial Statements and (ii) the amount of any Investments made in the Specified Joint Ventures after the Fourth Amendment and Restatement Date (determined as of the date of such designation in accordance with the definition of “Investment”), does not exceed 5% of the Consolidated Total Assets of the Borrower and its Consolidated Subsidiaries, the designation would not cause a Default and on a Pro Forma Basis, after giving effect to such designation, the Borrower shall be in compliance with the covenants set forth in Article 6 hereof; provided that:
(i) no Default shall have occurred and be continuing at such Subsidiary does not own any capital stock of the time of Borrower or after giving effect to such designationany Restricted Subsidiary;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any IndebtednessIndebtedness of, or any Lien on any propertyproperty of, of the Company Borrower or any Restricted Subsidiary, if such Disqualified in each case except to the extent permitted by Section 7.01 or Preferred Stock or Indebtedness could not 7.02, respectively;
(iii) at the time of designation, the designation would be Incurred permitted under Section 4.06 7.08;
(iv) to the extent the Indebtedness of the Subsidiary is not Non-Recourse Debt, any Guarantee or such Lien would violate Section 4.08other credit support thereof by the Borrower or any Restricted Subsidiary is permitted under Sections 7.01 and 7.08;
(v) such the Subsidiary is not party to any transaction or arrangement with the Borrower or any Restricted Subsidiary does that would not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this be permitted under Section 4.18(a)7.04; and
(vi) neither the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or Borrower nor any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors has any obligation to subscribe for additional Equity Interests of the Company has determined in good faith that the designation Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor operating results except to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned permitted by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02Sections 7.01 and 7.
Appears in 1 contract
Sources: Fourth Amendment and Restatement Agreement (Kindred Healthcare, Inc)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith Parent Guarantor may designate any Subsidiary of the Parent Guarantor (including any existing Subsidiary and any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on, any property of, the Parent Guarantor or any Subsidiary of the Parent Guarantor (other than any Subsidiary of the Subsidiary to be so designated); provided that
(a) any Unrestricted Subsidiary must be an entity of which shares of the Capital Stock or other Equity Interests (including partnership interests) entitled to cast at least a majority of the votes that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange may be cast by all shares or Equity Interests having ordinary voting power for the Restructuringelection of directors or other governing body are owned, directly or indirectly, by the Parent Guarantor,
(Bb) such designation complies with Section 4.09 hereof and
(c) each of (x) the Subsidiary to be so designated and (y) its Subsidiaries, has not at the time of such designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the members lender has recourse to any of the Restructuring Group remain Subsidiaries assets of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) Parent Guarantor or any Restricted Subsidiary. The Board of Directors of the Parent Guarantor may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i) , immediately after giving effect to such designation no Default or Event of Default shall have occurred and be continuing and either:
(a) the Parent Guarantor could incur at least $1.00 of additional Indebtedness pursuant to Section 4.09(a) hereof or
(b) the time Fixed Charge Coverage Ratio for the Parent Guarantor and its Restricted Subsidiaries would be greater than such ratio for the Parent Guarantor and its Restricted Subsidiaries immediately prior to such designation, in each case on a pro forma basis taking into account such designation. Any such designation by the Board of or after Directors of the Parent Guarantor shall be notified by the Company to the Trustee by promptly filing with the Trustee a copy of the board resolution giving effect to such designation;
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of designation and an Officers’ Certificate certifying that such designation which complied with the foregoing provisions. For purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the Parent Guarantor and its Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated will be deemed to have been Incurred by be Restricted Payments in an amount determined as set forth in the last sentence of the definition of “Investment.” Such designation will be permitted only if a Restricted Payment in such newly designated Restricted Subsidiary as a result of such designation amount would be permitted at such time, whether pursuant to be Incurred Section 4.07(a) hereof or under Section 4.06;
4.07(b)(6), (iii8) or (9) any Lien on hereof, or pursuant to the property definition of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) “Permitted Investments,” and if such Restricted Subsidiary is not organized under otherwise meets the laws definition of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02an Unrestricted Subsidiary.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors of the Issuer may designate any Restricted Subsidiary of the Issuer to be an Unrestricted Subsidiary, ; provided that:
(i) no Default shall have occurred and be continuing at the time of or and after giving effect to any such designation;, the Issuer and its Restricted Subsidiaries account for at least 85% of the Consolidated Net Tangible Assets of the Issuer (excluding all of the assets of an Unrestricted Subsidiary that was an Unrestricted Subsidiary as of the Issue Date)
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made Guarantee by the Company Issuer or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation thereof of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors any Indebtedness of the Company has determined in good faith that Subsidiary being so designated will be deemed to be an Incurrence of Indebtedness by the designation of Issuer or such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the RestructuringRestricted Subsidiary (or both, (Bif applicable) at the time of such designation, and such Incurrence of Indebtedness would be permitted under Section 7.10;
(iii) the members aggregate Fair Market Value of all outstanding Investments owned by the Restructuring Group remain Issuer and its Restricted Subsidiaries in the Subsidiary being so designated (including any Guarantee by the Issuer or any Restricted Subsidiary thereof of the Company, and (C) at the time any Indebtedness of such designationSubsidiary) will, the members of the Restructuring Group remain primarily engaged in the unless it otherwise constitutes a Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary Investment, be deemed to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time Investment made as of or after giving effect to such designation;
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by and that such newly designated Restricted Subsidiary as a result of such designation Investment would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.087.9;
(iv) such Unrestricted Subsidiary is does not a hold any Liens on any property of the Issuer or any Restricted Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary)thereof;
(v) if the Subsidiary being so designated:
(A) is a Person with respect to which neither the Issuer nor any of its Restricted Subsidiaries has any direct or indirect obligation (i) to subscribe for additional Equity Interests or (ii) to maintain or preserve such Restricted Subsidiary is Person’s financial condition or to cause such Person to achieve any specified levels of operating results;
(B) has not organized under the laws guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the PRCIssuer or any of its Restricted Subsidiaries, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor except to the extent required under Section 11.10such Guarantee or credit support would be released upon such designation; and
(C) is not a party to any agreement or understanding with the Issuer or any of its Restricted Subsidiaries unless the terms of any such agreement would be permitted under Section 7.12;
(vi) if no Default or Event of Default would be in existence following such designation.
(b) Any designation of a Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee the Board Resolution giving effect to such Restricted Subsidiary owned designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02Indenture.
Appears in 1 contract
Sources: Trust Indenture
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, ; provided that:
(i) no Event of Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any IndebtednessIndebtedness of, or any Lien on any propertyproperty of, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 10(w) or such Lien would violate Section 4.0810(y);
(viv) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as to be Unrestricted Subsidiaries in accordance with this Section 4.18(a)provision; and
(viv) the Investment deemed to have been made thereby in such newly newly-designated Unrestricted Subsidiary and each other newly newly-designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses10(x).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i) no Event of Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly newly-designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.0610(w);
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred incurred by such newly newly- designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred incurred under Section 4.0810(y);
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee Holder a supplemental indenture to this Indenture Guarantee by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to in accordance with the extent required terms under Section 11.10the Indenture; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, is not Xinyuan International (HK) Property Investment Co., Limited or a Subsidiary of a JV Subsidiary Guarantor, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent as required under Section 10.0218.
Appears in 1 contract
Sources: Securities Purchase Agreement (Xinyuan Real Estate Co., Ltd.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors Company may designate after the Issue Date any Restricted Subsidiary to be (including any newly acquired or newly formed Subsidiary) as an “Unrestricted Subsidiary, provided that” under this Third Lien Exchangeable Notes Indenture (a “Designation”) only if:
(i1) no Default or Event of Default shall have occurred and be continuing at the time of or both immediately before and immediately after giving effect to such designationDesignation;
(ii2) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for to be so designated and its Subsidiaries do not at the Indebtedness time of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not Designation own any Disqualified Capital Stock of the Company or Disqualified Indebtedness of, or Preferred Stock of another Restricted Subsidiary own or hold any IndebtednessLien with respect to, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in of the Company (other than any Subsidiary of the Subsidiary to be so designated);
(3) all the Indebtedness of such Subsidiary and its Subsidiaries shall, at the date of Designation, and will at all times thereafter, consist of Non-Recourse Debt;
(4) such Subsidiary is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation:
(i) to subscribe for additional Capital Stock of such Subsidiary; or
(ii) to maintain or preserve such Subsidiary’s financial condition or to cause such Subsidiary to achieve any specified levels of operating results; and
(5) the aggregate Fair Market Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Commercial Properties Group Subsidiary designated as an Unrestricted Subsidiary shall be deemed to be an Investment made as of the time of the Designation and must comply with Section 4.08.
(b) The Company may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a “Revocation”) only if, immediately after giving effect such Revocation:
(1) no Default or Event of Default has occurred and is continuing after giving effect to such Revocation;
(2) The Consolidated Leverage Ratio for the Company and its Restricted Subsidiaries would be better than or equal to such ratio for the Company and its Restricted Subsidiaries immediately prior to such Revocation, in connection each case on a pro forma basis taking into account such Revocation; and
(3) all Liens of such Unrestricted Subsidiary outstanding immediately following such Revocation would, if Incurred at such time, have been permitted to be Incurred for all purposes of this Third Lien Exchangeable Notes Indenture.
(c) Any such Designation or Revocation shall be evidenced to the Trustee by filing with the Restructuring upon designation Trustee a certified copy of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) resolution of the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;Designation or Revocation, as the case may be, and an Officer’s Certificate certifying that such Designation or Revocation complied with the foregoing conditions.
(iid) A Revocation will be deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary. If, at any time, any Unrestricted Subsidiary would fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Third Lien Exchangeable Notes Indenture, and any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will shall be deemed to have been be Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02date.
Appears in 1 contract
Sources: Third Lien Exchangeable Senior Secured Pik Notes Indenture (WeWork Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors Company may designate after the Issue Date any Restricted Subsidiary to be (including any newly acquired or newly formed Subsidiary) as an “Unrestricted Subsidiary, provided that” under this Indenture (a “Designation”) only if:
(i1) no Default shall have or Event of Default has occurred and be is continuing at the time of or after giving effect to such designationDesignation;
(ii2) neither the Company nor Subsidiary to be so designated and its Subsidiaries do not at the time of Designation own any Restricted Subsidiary guarantees Capital Stock or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of of, or own or hold any Lien with respect to, the Company or any other Restricted SubsidiarySubsidiary of the Company that is not a Subsidiary of the Subsidiary so designated;
(iv3) all the Indebtedness of such Restricted Subsidiary does not own any Disqualified Stock and its Subsidiaries shall, at the date of the Company or Disqualified or Preferred Stock designation, and will at all times thereafter, consist of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08Non-Recourse Debt;
(v4) such Subsidiary and its Subsidiaries are Persons with respect to which neither the Company nor any of the Company’s Restricted Subsidiary does not own Subsidiaries has any Voting direct or indirect obligation:
(A) to subscribe for additional Capital Stock of another Restricted such Subsidiary or its Subsidiaries; or
(B) to maintain or preserve such Subsidiary, and all ’s or any of its Subsidiaries’ financial condition or to cause such Subsidiary or any of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a)to achieve any specified levels of operating results; and
(vi5) either (A) the Investment deemed Subsidiary to have been made thereby in be so designated has total consolidated assets of $1,000 or less or (B) if such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated has consolidated assets greater than $1,000, then such Designation would be permitted to be made under Section 4.07 4.08 or the definition of “Permitted Investment.”
(other than b) The Company may revoke any Investment deemed to have been made by the Company or any Restricted Designation of a Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of as an Unrestricted Subsidiary (a “Revocation”) only if, immediately after giving effect such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that Revocation:
(1) (A) The Company would be able to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.09(a) or (B) the Consolidated 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 Revocation, in each case on a pro forma basis taking into account such Revocation;
(2) all Liens of such Unrestricted Subsidiary outstanding immediately following such Revocation would, if Incurred at such time, have been permitted to be Incurred for all purposes of this Indenture; and
(3) no Default or Event of Default has occurred and is continuing after giving effect to such Revocation.
(c) Any such Designation or Revocation shall be evidenced to the Trustee by delivering to the Trustee a certified copy of the resolution of the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;Designation or Revocation, as the case may be, and an Officers’ Certificate and an Opinion of Counsel certifying that such Designation or Revocation complies with the foregoing conditions.
(iid) A Revocation will be deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary. If, at any time, any Unrestricted Subsidiary would fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture, and any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will shall be deemed to have been be Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02date.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, ; provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither such Restricted Subsidiary does not own any Disqualified Stock of the Company nor or any Subsidiary Guarantor or Disqualified or Preferred Stock of a Restricted Subsidiary that is not a Subsidiary Guarantor or hold any Indebtedness of, or any Lien on any property of, the Company or any Restricted Subsidiary guarantees Subsidiary, if such Disqualified or provides credit support for the Preferred Stock or Indebtedness of could not be Incurred under Section 4.05 or such Restricted SubsidiaryLien would violate Section 4.07;
(iii) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary or have any economic interest in a Variable Interest Entity, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated to be Unrestricted Subsidiaries in accordance with this Section 4.17(a);
(iv) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, and none of the Company or any Restricted Subsidiary, if such Disqualified Subsidiary Guarantees or Preferred Stock or provides credit support for the Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) of such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(viv) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses)4.06.
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will shall be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.064.05;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will shall be deemed to have been Incurred incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred incurred under Section 4.084.07;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);; and
(v) if such Restricted Subsidiary is not organized under the laws of the PRCa Non-Guarantor Subsidiary, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; andGuarantor.
(vic) if such Any designation by the Board of Directors of a Subsidiary as a Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Unrestricted Subsidiary shall be pledged evidenced to the extent required under Section 10.02Trustee by promptly filing with the Trustee a copy of the Board Resolution giving effect to the designation and an Officers’ Certificate certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors Company may designate after the Issue Date any Restricted Subsidiary to be (including any newly acquired or newly formed Subsidiary) as an “Unrestricted Subsidiary, provided that” under this Second Lien Exchangeable Notes Indenture (a “Designation”) only if:
(i1) no Default or Event of Default shall have occurred and be continuing at the time of or both immediately before and immediately after giving effect to such designationDesignation;
(ii2) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for to be so designated and its Subsidiaries do not at the Indebtedness time of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not Designation own any Disqualified Capital Stock of the Company or Disqualified Indebtedness of, or Preferred Stock of another Restricted Subsidiary own or hold any IndebtednessLien with respect to, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in of the Company (other than any Subsidiary of the Subsidiary to be so designated);
(3) all the Indebtedness of such Subsidiary and its Subsidiaries shall, at the date of Designation, and will at all times thereafter, consist of Non-Recourse Debt;
(4) such Subsidiary is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation:
(i) to subscribe for additional Capital Stock of such Subsidiary; or
(ii) to maintain or preserve such Subsidiary’s financial condition or to cause such Subsidiary to achieve any specified levels of operating results; and
(5) the aggregate Fair Market Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Commercial Properties Group Subsidiary designated as an Unrestricted Subsidiary shall be deemed to be an Investment made as of the time of the Designation and must comply with Section 4.08.
(b) The Company may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a “Revocation”) only if, immediately after giving effect such Revocation:
(1) no Default or Event of Default has occurred and is continuing after giving effect to such Revocation;
(2) The Consolidated Leverage Ratio for the Company and its Restricted Subsidiaries would be better than or equal to such ratio for the Company and its Restricted Subsidiaries immediately prior to such Revocation, in connection each case on a pro forma basis taking into account such Revocation; and
(3) all Liens of such Unrestricted Subsidiary outstanding immediately following such Revocation would, if Incurred at such time, have been permitted to be Incurred for all purposes of this Second Lien Exchangeable Notes Indenture.
(c) Any such Designation or Revocation shall be evidenced to the Trustee by filing with the Restructuring upon designation Trustee a certified copy of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) resolution of the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;Designation or Revocation, as the case may be, and an Officer’s Certificate certifying that such Designation or Revocation complied with the foregoing conditions.
(iid) A Revocation will be deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary. If, at any time, any Unrestricted Subsidiary would fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Second Lien Exchangeable Notes Indenture, and any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will shall be deemed to have been be Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02date.
Appears in 1 contract
Sources: Second Lien Exchangeable Senior Secured Pik Notes Indenture (WeWork Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board board of Directors directors of Axiall may at any time designate any Restricted Subsidiary to be of Axiall as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided, provided that:
that (i) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing at the time of or continuing, (ii) after giving effect to such designation;
, the Borrowers shall be in pro forma compliance with Section 6.1 (ii) neither the Company nor any Restricted Subsidiary guarantees whether or provides credit support for the Indebtedness of such Restricted Subsidiary;
not then applicable), (iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Borrower may be designated as an Unrestricted Subsidiary;
, (iv) such no subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for the purpose of the Term Loan Agreement, Secured Notes, or the 2013 Indenture (or any agreements governing any Permitted Refinancings thereof), (v) as of the date of the designation thereof, no Unrestricted Subsidiary does not shall own any Disqualified Stock of the Company in Axiall or Disqualified or Preferred Stock of another its Restricted Subsidiary Subsidiaries or hold any IndebtednessIndebtedness of, or any Lien on any propertyproperty of Axiall or its Restricted Subsidiaries, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated holder of any Indebtedness of any Unrestricted Subsidiary shall not have any recourse to Axiall or its Subsidiaries with respect to such Indebtedness; provided, that this clause (vi) shall not apply to the extent that (x) such Unrestricted Subsidiary’s principal objective is constructing, acquiring, owning, refurbishing, upgrading or operating an Ethylene Cracker Facility and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than y) any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group Liens granted in connection with the Restructuring upon any credit support or guarantee provided by Axiall or its Subsidiaries in connection therewith are permitted under Section 5.1. The designation of such Subsidiaries any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by Axiall therein at the date of designation in an amount equal to the Commercial Properties Group fair market value as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined by Axiall in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time Axiall’s or any of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a its Restricted Subsidiary’s (as applicable) Investment therein; provided, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) any Indebtedness that upon a redesignation of such Unrestricted Subsidiary outstanding at the time of such designation which will as a Subsidiary, Axiall shall be deemed to continue to have been Incurred by a permanent Investment in a Subsidiary in an amount (if positive) equal to (a) Axiall’s “Investment” in such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such redesignation, less (b) the portion (proportionate to Axiall’s equity interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation. The designation which of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Unrestricted Subsidiary existing at such time and a return on any Investment by Axiall in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value as determined by Axiall in good faith at the date of such designation of Axiall’s or its Subsidiary’s (as applicable) Investment in such Subsidiary. Any designation of a Subsidiary of Axiall as an Unrestricted Subsidiary will be evidenced to the Administrative Agent by delivering to the Administrative Agent a certified copy of a resolution of the board of directors of Axiall giving effect to such designation and an officers’ certificate certifying that such designation complied with the preceding conditions. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Agreement and any Indebtedness of and Investments by such Subsidiary will be deemed to have been Incurred be incurred by such newly designated a Restricted Subsidiary of Axiall as a result of such designation would be date and, if such Indebtedness is not permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated incurred as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by date under this Agreement, the Company or any other Restricted Subsidiary shall Borrowers will be pledged to the extent required under Section 10.02in default of such covenants.
Appears in 1 contract
Sources: Credit Agreement (Axiall Corp/De/)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, ; provided that:
(i) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does and its Subsidiaries do not own any Disqualified Stock of the Company or any Guarantor or Disqualified Stock or Preferred Stock of another a Restricted Subsidiary that is not a Subsidiary Guarantor or hold any IndebtednessIndebtedness of, or any Lien on any property, of assets or proceeds of, the Company Parent Guarantor or any Restricted Subsidiary, if such Disqualified Stock or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(viii) such Restricted Subsidiary does and its Subsidiaries do not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as to be Unrestricted Subsidiaries in accordance with this Section 4.18(a);
(iv) none of the Parent Guarantor or any Restricted Subsidiary guarantees or provides credit support or is directly or indirectly liable for the Indebtedness of such Restricted Subsidiary; and
(viv) the Investment deemed to have been made thereby in such newly newly- designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses)4.07.
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly newly- designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred incurred by such newly newly-designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such newly designated Restricted Subsidiary is not organized under the laws of the PRC, such newly designated Restricted Subsidiary shall will upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such newly designated Restricted Subsidiary shall will become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10Guarantor; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC or directly owned by a Restricted Subsidiary organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company Parent Guarantor or any other Restricted Subsidiary will be pledged as required under Section 12.02.
(c) Any such designation of a Restricted Subsidiary or an Unrestricted Subsidiary shall be pledged evidenced to the extent required under Section 10.02Trustee by filing with the Trustee a certified copy of the resolution of the Board of Directors of the Parent Guarantor giving effect to such designation or revocation, as the case may be, and an Officers’ Certificate certifying that such designation or revocation complied with the foregoing conditions.
Appears in 1 contract
Sources: Indenture (China XD Plastics Co LTD)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors Company may designate after the Issue Date any Restricted Subsidiary to be (including any newly acquired or newly formed Subsidiary) as an “Unrestricted Subsidiary, provided that” under this Indenture (a “Designation”) only if:
(i1) no Default shall have or Event of Default has occurred and be is continuing at the time of or after giving effect to such designationDesignation;
(ii2) neither the Company nor Subsidiary to be so designated and its Subsidiaries do not at the time of Designation own any Restricted Subsidiary guarantees Capital Stock or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of of, or own or hold any Lien with respect to, the Company or any other Restricted SubsidiarySubsidiary of the Company that is not a Subsidiary of the Subsidiary so designated;
(iv3) all the Indebtedness of such Restricted Subsidiary does not own any Disqualified Stock and its Subsidiaries shall, at the date of the Company or Disqualified or Preferred Stock designation, and will at all times thereafter, consist of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08Non-Recourse Debt;
(v4) such Subsidiary and its Subsidiaries are Persons with respect to which neither the Company nor any of the Company’s Restricted Subsidiary does not own Subsidiaries has any Voting direct or indirect obligation:
(A) to subscribe for additional Capital Stock of another Restricted such Subsidiary or its Subsidiaries; or
(B) to maintain or preserve such Subsidiary, and all ’s or any of its Subsidiaries’ financial condition or to cause such Subsidiary or any of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a)to achieve any specified levels of operating results; and
(vi5) either (A) the Investment deemed Subsidiary to have been made thereby in be so designated has total consolidated assets of $1,000 or less or (B) if such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated has consolidated assets greater than $1,000, then such Designation would be permitted to be made under Section 4.07 4.08 or the definition of “Permitted Investment.”
(other than b) The Company may revoke any Investment deemed to have been made by the Company or any Restricted Designation of a Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of as an Unrestricted Subsidiary (a “Revocation”) only if, immediately after giving effect such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that Revocation:
(1) (A) The Company would be able to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.09(a) or (B) the Consolidated 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 Revocation, in each case on a pro forma basis taking into account such Revocation;
(2) all Liens of such Unrestricted Subsidiary outstanding immediately following such Revocation would, if Incurred at such time, have been permitted to be Incurred for all purposes of this Indenture; and
(3) no Default or Event of Default has occurred and is continuing after giving effect to such Revocation.
(c) Any such Designation or Revocation shall be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;Designation or Revocation, as the case may be, and an Officers’ Certificate and an Opinion of Counsel certifying that such Designation or Revocation complies with the foregoing conditions.
(iid) A Revocation will be deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary. If, at any time, any Unrestricted Subsidiary would fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture, and any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will shall be deemed to have been be Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02date.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors or chief financial officer of Parent may designate any Subsidiary of the Parent (other than (x) any Borrower or (y) any Material Subsidiary, provided that the Borrower may designate any Material Subsidiary as an Unrestricted Subsidiary if (I) the Borrower reasonably determines that such Material Subsidiary is unable to continue as a Restricted Subsidiary as a matter of applicable law (as reasonably determined by the Borrower in consultation with the Administrative Agent) or such Subsidiary is Surpique or (II) such Material Subsidiary is Coupang Pay and Coupang Pay does not have Consolidated Total Tangible Assets of more than 15% of the Consolidated Total Tangible Assets of Parent and its Restricted Subsidiaries or gross revenues of more than 15% of the consolidated gross revenues of Parent and its Restricted Subsidiaries, in each case determined as of the most recent financial statements that have been delivered pursuant to Section 5.1(a) or (b) of Section 3.4(a)), including a newly acquired or created Subsidiary of Parent, to be an Unrestricted Subsidiary, provided thatSubsidiary if it meets the following qualifications:
(i) such Subsidiary does not own any Equity Interest of Parent or any other Restricted Subsidiary of Parent;
(ii) Parent would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate fair market value (as determined by Parent in good faith) of all Investments of Parent or its Restricted Subsidiaries in such Subsidiary (valued at Parent’s and its Restricted Subsidiaries’ proportional share of the fair market value (as determined by Parent in good faith) of such Subsidiary’s assets less liabilities);
(iii) any Guarantee or other credit support thereof by Parent or any Restricted Subsidiary of Parent is permitted under Section 6.1 or Section 6.7;
(iv) neither Parent nor any Restricted Subsidiary of Parent has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.1 or Section 6.7;
(v) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to would result from such designation;
(iivi) neither the Company nor no Subsidiary (other than Surpique) may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of Parent or a Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;Parent; and
(iiivii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary (or hold an exclusive license in respect of) any IndebtednessIntellectual Property other than ownership or a license resulting from a Permitted IP Transfer. Once so designated, or any Lien on any property, of the Company or any Restricted Subsidiary will remain an Unrestricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
subject to subsection (v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businessesb).
(b) The (i) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(iii), (a)(iv) or (a)(vi) of Section 5.13 will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in subsection (d) of Section 5.13 and (ii) the Board of Directors or chief financial officer of Parent may designate any an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary, provided that:,
(i) no Default shall have occurred all existing Investments of Parent and the Restricted Subsidiaries of Parent therein (valued at Parent’s and its Restricted Subsidiaries’ proportional share of the fair market value of its assets less liabilities) will be continuing deemed made at the time of or after giving effect to such designationthat time;
(ii) any all existing Equity Interest or Indebtedness of Parent or a Restricted Subsidiary of Parent held by such Unrestricted Subsidiary will be deemed issued or incurred, as applicable, at that time, and all Liens on property of Parent or a Restricted Subsidiary of Parent securing obligations of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06incurred at that time;
(iii) all existing transactions between it and Parent or any Lien on the property Restricted Subsidiary of such Unrestricted Subsidiary at the time of such designation which Parent will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08entered into at that time;
(iv) such Unrestricted Subsidiary is not a Subsidiary it will be released at that time from its Guaranty; and
(v) it will cease to be subject to the provisions of another Unrestricted Subsidiary (that is not concurrently being designated this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.13(b),
(i) all of its Indebtedness and Liens will be deemed incurred at that time for purposes of Section 6.1 and Section 6.2, as applicable;
(vii) if such Restricted Subsidiary all Investments therein previously charged under Section 6.7 will be credited thereunder;
(iii) unless it is not organized under the laws of the PRCan Excluded Subsidiary, such Restricted Subsidiary it shall upon such designation execute and deliver be required to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor pursuant to the extent required under Section 11.105.10; and
(viiv) if such it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the Board of Directors or chief financial officer of Parent of a Subsidiary is not organized under as an Unrestricted Subsidiary after the laws Effective Date will be evidenced to the Administrative Agent by promptly filing with the Administrative Agent a copy of the PRC, all Capital Stock resolutions of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged Board of Directors of Parent giving effect to the extent required under Section 10.02designation and a certificate of a Responsible Officer of Parent certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Coupang, Inc.)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors may designate any Subsidiary (other than a Material Subsidiary that was designated a Restricted Subsidiary on the Closing Date) of the Borrower to be an Unrestricted Subsidiary, provided thatSubsidiary if:
(i) no Default shall have occurred and be continuing at either (x) the time Borrower or a Restricted Subsidiary, as the case may be, is permitted to make an Investment in such Subsidiary equal to the sum of the (A) Fair Market Value of the Capital Stock of such Subsidiary plus (B) the amount of any Indebtedness owed by such Subsidiary to the Borrower, in each case pursuant to Section 7.5(a) or after giving effect to (y) such designationInvestment constitutes a Permitted Investment;
(ii) neither immediately after giving pro forma effect to such designation, the Company nor any Restricted Subsidiary guarantees or provides credit support for the Borrower could Incur at least $1.00 of additional Indebtedness of such Restricted Subsidiary;pursuant to Section 7.1(a)(i); and
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Capital Stock of the Company or Disqualified Indebtedness of, or Preferred Stock of another Restricted Subsidiary own or hold any Indebtedness, or any Lien on any propertyProperty of, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company Borrower or any Restricted Subsidiary and does not have any Indebtedness other than Non-Recourse Debt. Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the Borrower will be classified as a Restricted Subsidiary; provided, however, that such Subsidiary shall not be designated a Restricted Subsidiary and shall be automatically classified as an Unrestricted Subsidiary if such Person is a Subsidiary of an Unrestricted Subsidiary.
(b) Except as provided in Section 7.12(a), no Restricted Subsidiary may be redesignated as an Unrestricted Subsidiary, and neither the Subsidiaries in Borrower nor any Restricted Subsidiary shall at any time be directly or indirectly liable for any Indebtedness (other than Indebtedness pursuant to this Agreement) that provides that the Commercial Properties Group in connection holder thereof may (with the Restructuring passage of time or notice or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its Stated Maturity upon designation the occurrence of a default with respect to any Indebtedness, Lien or other obligation of any Unrestricted Subsidiary (including any right to take enforcement action against any such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted BusinessesSubsidiary).
(bc) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted SubsidiarySubsidiary if, provided that:
immediately after giving pro forma effect to such designation, (i) the Borrower could Incur at least $1.00 of additional Indebtedness pursuant to Section 7.1(a)(i) and (ii) no Default or Event of Default shall have occurred and be continuing at or would result therefrom.
(d) Any such designation or redesignation by the time Board of or after Directors will be evidenced to the Administrative Agent by delivering to the Administrative Agent a resolution of the Board of Directors giving effect to such designation;
designation or redesignation and a certificate of a Responsible Officer that (i) certifies that such designation or redesignation complies with this Section 7.12 and (ii) any Indebtedness of such Unrestricted Subsidiary outstanding at gives the time effective date of such designation which will or redesignation, such certificate to be deemed delivered to have been Incurred by such newly designated Restricted Subsidiary as a result the Administrative Agent at least 5 days prior to the effective date of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02redesignation.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors of the Parent may designate any Restricted Subsidiary of the Parent (other than the Company) to be an Unrestricted Subsidiary, ; provided that:
(i1) no Default shall have occurred and any Guarantee by the Parent or any of its Restricted Subsidiaries of any Indebtedness of the Subsidiary being so designated will be continuing deemed to be an Incurrence of Indebtedness by the Parent or such Restricted Subsidiary (or both, if applicable) at the time of or after giving effect to such designation, and such Incurrence of Indebtedness would be permitted under Section 4.09;
(ii2) neither the Company nor aggregate Fair Market Value of all outstanding Investments owned by the Parent and its Restricted Subsidiaries in the Subsidiary being so designated (including any Guarantee by the Parent or any of its Restricted Subsidiary guarantees or provides credit support for the Subsidiaries of any Indebtedness of such Subsidiary) will be deemed to be a Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness Investment made as of the Company or any other Restricted Subsidiary;
(iv) time of such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiarydesignation, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the such Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 4.07;
(other than 3) such Subsidiary does not hold any Investment deemed to have been made by Liens on any property of the Company Parent or any of its Restricted Subsidiaries;
(4) the Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that being so designated:
(A) is not party to any agreement, contract, arrangement or understanding with the Parent or any of its Restricted Subsidiaries unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Parent or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Parent;
(B) is a Person with respect to which neither the Parent nor any of its Restricted Subsidiaries has any direct or indirect obligation (i) to subscribe for additional Equity Interests or (ii) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and
(C) has not Guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Parent or any of its Restricted Subsidiaries, except to the extent such Guarantee or credit support would be released upon such designation; and
(5) no Default or Event of Default would be in existence following such designation.
(b) Any designation of a Restricted Subsidiary of the Parent as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee the Board Resolution giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by this Indenture. If, at any time, any Unrestricted Subsidiary would fail to meet any of the preceding requirements, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness, Investments, or Liens on the property, of such Subsidiary will be deemed to be Incurred or made by a Restricted Subsidiary of the Parent as of such date and, if such Indebtedness, Investments or Liens are not permitted to be Incurred or made as of such date under this Indenture, the Parent will be in default under this Indenture.
(c) The Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) Parent may at the any time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i1) no Default shall have occurred and such designation will be continuing at deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of the time Parent of or after giving effect to such designation;
(ii) any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable four-quarter reference period;
(2) all outstanding Investments owned by such Unrestricted Subsidiary will be deemed to be made as of the time of such designation and such designation will only be permitted if such Investments would be permitted under Section 4.07;
(3) all Liens upon property or assets of such Unrestricted Subsidiary existing at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.104.12; and
(vi4) if no Default or Event of Default would be in existence following such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02designation.
Appears in 1 contract
Sources: Indenture (Bon Ton Stores Inc)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors may designate any Restricted Subsidiary Subsidiary, including a newly acquired or created Subsidiary, to be an Unrestricted Subsidiary, provided that:Subsidiary if it meets the following qualifications and the designation would not cause a Default.
(iA) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted The Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another a Restricted Subsidiary or hold any IndebtednessDebt of, or any Lien on any propertyproperty of, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness Debt could not be Incurred under the provisions of Section 4.06 or such Lien would violate the provisions of Section 4.08;; and
(vB) such Restricted the Subsidiary does not own any Voting Stock of another a Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently Subsidiaries. Once so designated as the Subsidiary will remain an Unrestricted Subsidiaries in accordance with this Section 4.18(aSubsidiary, subject to paragraph (b); and.
(vi1) A Subsidiary previously designated an Unrestricted Subsidiary which fails at any time to meet the Investment qualifications set forth in paragraph (a) will be deemed to have been become at that time a Restricted Subsidiary, subject to the consequences set forth in paragraph (d).
(2) The Board of Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if the designation would not cause a Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,
(1) all existing Investments of the Company and the Restricted Subsidiaries therein (valued at the Company's proportional share of the Fair Market Value of its assets less liabilities) will be deemed made thereby in at that time;
(2) all existing Capital Stock or Debt of the Company or a Restricted Subsidiary held by such newly designated Unrestricted Subsidiary will be deemed Incurred at that time, and all Liens on property of the Company or a Restricted Subsidiary held by such Unrestricted Subsidiary will be deemed incurred at that time;
(3) all existing transactions between such Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary will be deemed entered into at that time;
(4) such Unrestricted Subsidiary will be released at that time from its Note Guaranty, if any; and
(5) such Unrestricted Subsidiary will cease to be subject to the provisions of this Indenture as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary,
(1) all of its Debt and Disqualified or Preferred Stock will be deemed Incurred at that time for purposes of the covenant set forth in Section 4.06, but will not be considered the Subsidiaries sale or issuance of Equity Interests for purposes of the covenants set forth in Section 4.11 or Section 4.14;
(2) Investments therein previously charged under the Commercial Properties Group covenant set forth in connection with Section 4.07 will be credited thereunder;
(3) it may be required to issue a Note Guaranty pursuant to Section 4.12; and
(4) it will become subject to the Restructuring upon provisions of this Indenture as a Restricted Subsidiary.
(e) Any designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) by the Board of Directors of the Company has determined in good faith of a Subsidiary as a Restricted Subsidiary or Unrestricted Subsidiary will be evidenced to the Trustee by promptly filing with the Trustee a copy of the Board Resolution giving effect to the designation and an Officer's Certificate certifying that the designation of such Subsidiaries in complied with the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses)foregoing provisions.
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors of C▇▇▇▇▇▇ may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, Subsidiary if no Default or Event of Default would be in existence following such designation; provided that:
(i1) no Default shall have occurred the aggregate Fair Market Value of all outstanding Investments owned by C▇▇▇▇▇▇ and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any its Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
the Subsidiary so designated (vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than including any Investment deemed to have been made guarantee by the Company C▇▇▇▇▇▇ or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of any Indebtedness of such Subsidiaries in the Commercial Properties Group Subsidiary) will be deemed to be an Investment made as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that time of the designation and that such Investment would be permitted under Section 4.07 hereof;
(2) any guarantee by C▇▇▇▇▇▇ or any Restricted Subsidiary thereof of any Indebtedness of the Subsidiary being so designated will be deemed to be an Incurrence of Indebtedness by C▇▇▇▇▇▇ or such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the RestructuringRestricted Subsidiary (or both, (Bif applicable) at the time of such designation, and such Incurrence of Indebtedness would be permitted under Section 4.09 hereof; and
(3) such Subsidiary does not hold any Liens on any property of C▇▇▇▇▇▇ or any Restricted Subsidiary thereof; provided, further, that such designation will only be permitted if the members Restricted Subsidiary otherwise meets the definition of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses)an Unrestricted Subsidiary.
(b) The Board of Directors of C▇▇▇▇▇▇ may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary, ; provided that:
(i1) no Default shall have occurred and such designation will be continuing at the time deemed to be an Incurrence of or after giving effect to such designation;
(ii) Indebtedness by a Restricted Subsidiary of C▇▇▇▇▇▇ of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period;
(2) all outstanding Investments owned by such Unrestricted Subsidiary will be deemed to be made as of the time of such designation and such designation will only be permitted if such Investments would be permitted under Section 4.07 hereof;
(3) all Liens upon property or assets of such Unrestricted Subsidiary existing at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.064.12 hereof;
(iii4) any Lien on the property no Default or Event of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation Default would be permitted to be Incurred under Section 4.08;in existence following such designation; and
(iv5) such Unrestricted Subsidiary is not becomes a Subsidiary Guarantor and executes a supplemental indenture in substantially the form of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws Exhibit F hereto and delivers an Opinion of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver Counsel reasonably satisfactory to the Trustee a within 10 Business Days of the date on which it is designated to the effect that such supplemental indenture to this Indenture by which such Restricted Subsidiary shall become has been duly authorized, executed and delivered and constitutes a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRClegal, all Capital Stock valid and binding agreement of such Restricted Subsidiary, enforceable against such Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02in accordance with its terms.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board board of Directors directors of Axiall may at any time designate any Restricted Subsidiary to be of Axiall as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided, provided that:
that (i) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such designation;
continuing, (ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Borrower may not be designated as an Unrestricted Subsidiary;
, (iii) such no subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to Subsidiary” (or the Indebtedness equivalent term) for the purpose of the Company ABL Credit Agreement, the 4.625% Notes Indenture or 4.875% Notes Indenture (or any other Restricted Subsidiary;
agreements governing any Permitted Refinancing thereof), (iv) such Restricted as of the date of the designation thereof, no Unrestricted Subsidiary does not shall own any Disqualified Stock of the Company in Axiall or Disqualified or Preferred Stock of another its Restricted Subsidiary Subsidiaries or hold any IndebtednessIndebtedness of, or any Lien on any property, property of the Company Axiall or any its Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
Subsidiaries and (v) such Restricted the holder of any Indebtedness of any Unrestricted Subsidiary does shall not own have any Voting Stock of another Restricted Subsidiary, and all of recourse to Axiall or its Subsidiaries are with respect to such Indebtedness; provided, that this clause (v) shall not apply to the extent that (x) such Unrestricted Subsidiaries Subsidiary’s principal objective is constructing, acquiring, owning, refurbishing, upgrading or are being concurrently designated as Unrestricted operating an Ethylene Cracker Facility and (y) any Liens granted in connection with any credit support or guarantee provided by Axiall or its Subsidiaries in accordance with this connection therewith are permitted under Section 4.18(a); and
5.1. The designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by Axiall therein at the date of designation in an amount equal to the portion (vi) the Investment deemed proportionate to have been made thereby Axiall’s equity interest in such newly designated Unrestricted Subsidiary) of the fair market value of the net assets of such Subsidiary (and each other newly designated Unrestricted Subsidiary being concurrently redesignated would such designation shall only be permitted to be made the extent such Investment is permitted under Section 4.07 (other than any Investment deemed to have been made 5.4) as determined by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined Axiall in good faith faith; provided, that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from upon a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) any Indebtedness redesignation of such Unrestricted Subsidiary outstanding at the time of such designation which will as a Subsidiary, Axiall shall be deemed to continue to have been Incurred by a permanent Investment in a Subsidiary in an amount (if positive) equal to (a) Axiall’s “Investment” in such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such redesignation, less (b) the portion (proportionate to Axiall’s equity interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation as determined by Axiall in good faith. The designation which of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Unrestricted Subsidiary existing at such time and a return on any Investment by Axiall in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value as determined by Axiall in good faith at the date of such designation of Axiall’s or its Subsidiary’s (as applicable) Investment in such Subsidiary. Any designation of a Subsidiary of Axiall as an Unrestricted Subsidiary will be evidenced to Administrative Agent by delivering to Administrative Agent a certified copy of a resolution of the board of directors of Axiall giving effect to such designation and an officers’ certificate certifying that such designation complied with the preceding conditions. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Agreement and any Indebtedness of and Investments by such Subsidiary will be deemed to have been Incurred be incurred by such newly designated a Restricted Subsidiary of Axiall as a result of such designation would be date and, if such Indebtedness is not permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated incurred as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by date under this Agreement, the Company or any other Restricted Subsidiary shall Borrower will be pledged to the extent required under Section 10.02in default of such covenants.
Appears in 1 contract
Sources: Credit Agreement (Axiall Corp/De/)
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors Borrower may designate any Restricted Subsidiary (other than any Subsidiary that is an obligor with respect to any Indebtedness incurred pursuant to Section 7.01(a)(xiii) or 7.01(a)(xiv)), including a newly acquired or created Subsidiary, to be an Unrestricted SubsidiarySubsidiary if the sum of (i) the total assets of such Subsidiary (or, if any such Subsidiary itself has Subsidiaries, the consolidated total assets of such Subsidiary and its Consolidated Subsidiaries) and the total assets of every other Unrestricted Subsidiary (other than Cornerstone, the Specified Joint Ventures and the Excluded Partnerships), in each case determined as of the date of the Most Recent Financial Statements and (ii) the amount of any Investments made in the Specified Joint Ventures after the Second Amendment and Restatement Date (determined as of the date of such designation in accordance with the definition of “Investment”), does not exceed 5% of the Consolidated Total Assets of the Borrower and its Consolidated Subsidiaries, the designation would not cause a Default and on a Pro Forma Basis, after giving effect to such designation, the Borrower shall be in compliance with the covenants set forth in Article 6 hereof; provided that:
(i) no Default shall have occurred and be continuing at such Subsidiary does not own any capital stock of the time of Borrower or after giving effect to such designationany Restricted Subsidiary;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any IndebtednessIndebtedness of, or any Lien on any propertyproperty of, of the Company Borrower or any Restricted Subsidiary, if such Disqualified in each case except to the extent permitted by Section 7.01 or Preferred Stock or Indebtedness could not 7.02, respectively;
(iii) at the time of designation, the designation would be Incurred permitted under Section 4.06 7.08;
(iv) to the extent the Indebtedness of the Subsidiary is not Non-Recourse Debt, any Guarantee or such Lien would violate Section 4.08other credit support thereof by the Borrower or any Restricted Subsidiary is permitted under Sections 7.01 and 7.08;
(v) such the Subsidiary is not party to any transaction or arrangement with the Borrower or any Restricted Subsidiary does that would not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this be permitted under Section 4.18(a)7.04; and
(vi) neither the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or Borrower nor any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors has any obligation to subscribe for additional Equity Interests of the Company has determined in good faith that the designation Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor operating results except to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned permitted by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02Sections 7.01 and 7.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors Borrower may designate any Restricted Subsidiary (other than any Subsidiary that is an obligor with respect to any Indebtedness incurred pursuant to Section 7.01(a)(xiii) or 7.01(a)(xiv)), including a newly acquired or created Subsidiary, to be an Unrestricted SubsidiarySubsidiary if the sum of (i) the total assets of such Subsidiary (or, if any such Subsidiary itself has Subsidiaries, the consolidated total assets of such Subsidiary and its Consolidated Subsidiaries) and the total assets of every other Unrestricted Subsidiary (other than Cornerstone, the Specified Joint Ventures and the Excluded Partnerships), in each case determined as of the date of the Most Recent Financial Statements and (ii) the amount of any Investments made in the Specified Joint Ventures after the Third Amendment and Restatement Effective Date (determined as of the date of such designation in accordance with the definition of “Investment”), does not exceed 5% of the Consolidated Total Assets of the Borrower and its Consolidated Subsidiaries, the designation would not cause a Default and on a Pro Forma Basis, after giving effect to such designation, the Borrower shall be in compliance with the covenants set forth in Article 6 hereof; provided that:
(i) no Default shall have occurred and be continuing at such Subsidiary does not own any capital stock of the time of Borrower or after giving effect to such designationany Restricted Subsidiary;
(ii) neither the Company nor any Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any IndebtednessIndebtedness of, or any Lien on any propertyproperty of, of the Company Borrower or any Restricted Subsidiary, if such Disqualified in each case except to the extent permitted by Section 7.01 or Preferred Stock or Indebtedness could not 7.02, respectively;
(iii) at the time of designation, the designation would be Incurred permitted under Section 4.06 7.08;
(iv) to the extent the Indebtedness of the Subsidiary is not Non-Recourse Debt, any Guarantee or such Lien would violate Section 4.08other credit support thereof by the Borrower or any Restricted Subsidiary is permitted under Sections 7.01 and 7.08;
(v) such the Subsidiary is not party to any transaction or arrangement with the Borrower or any Restricted Subsidiary does that would not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this be permitted under Section 4.18(a)7.04; and
(vi) neither the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or Borrower nor any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors has any obligation to subscribe for additional Equity Interests of the Company has determined in good faith that the designation Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) any Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor operating results except to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned permitted by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02Sections 7.01 and 7.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. The Company may designate after the Issue Date any Subsidiary (including any newly acquired or newly formed Subsidiary) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(a) The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, provided that:
(i) no Default shall have or Event of Default has occurred and be is continuing at the time of or after giving effect to such designationDesignation;
(iib) neither the Subsidiary to be so designated and its Subsidiaries do not at the time of Designation own any Capital Stock or Indebtedness of, or own or hold any Lien on any Property of, the Company nor or any Restricted other Subsidiary guarantees or provides credit support for of the Indebtedness Company that is not a Subsidiary of such Restricted Subsidiarythe Subsidiary so designated;
(iiic) such Restricted the Subsidiary to be so designated and its Subsidiaries do not at the time of Designation have and do not thereafter Incur any Indebtedness pursuant to which the lender has no outstanding Indebtedness that could trigger a cross-default recourse to any of the Indebtedness assets of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness, or any Lien on any property, of the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.06 or such Lien would violate Section 4.08;
(v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a)Subsidiaries; and
(vid) either (x) the Investment deemed Subsidiary to have been made thereby in be so designated has total consolidated assets of $1,000 or less or (y) if such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated has consolidated assets greater than $1,000, then such Designation would be permitted under Section 4.07. The Company may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a “Revocation”) only if, immediately after giving effect such Revocation:
(e) (x) the Company could Incur at least $1.00 of additional Indebtedness under Section 4.09(a) or (y) the Fixed Charge Coverage Ratio would be greater than immediately prior to such Revocation, in each case on a pro forma basis taking into account such Revocation;
(f) all Liens of such Unrestricted Subsidiary outstanding immediately following such Revocation would, if Incurred at such time, have been permitted to be made under Section 4.07 Incurred for all purposes of this Indenture; and
(other than any Investment deemed g) no Default or Event of Default has occurred and is continuing after giving effect to have been made such Revocation. Each Designation and Revocation must be evidenced by promptly delivering to the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation Trustee a board resolution of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (A) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) Designation or Revocation, as the case may be, and an Officers’ Certificate certifying compliance with the preceding provisions. A Revocation will be deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06;
(iii) any Lien on the property of such Unrestricted Subsidiary at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08;
(iv) such Unrestricted Subsidiary is not a Subsidiary of another Unrestricted Subsidiary (that is not concurrently being designated as a Restricted Subsidiary);
(v) if such Restricted Subsidiary is not organized under the laws of the PRC, such Restricted Subsidiary shall upon such designation execute and deliver to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor to the extent required under Section 11.10; and
(vi) if such Restricted Subsidiary is not organized under the laws of the PRC, all Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged to the extent required under Section 10.02.
Appears in 1 contract
Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors or chief financial officer of Parent may designate any Subsidiary of the Parent (other than (x) any Borrower or (y) any Material Subsidiary, provided that the Borrower may designate any Material Subsidiary as an Unrestricted Subsidiary if (I) the Borrower reasonably determines that such Material Subsidiary is unable to continue as a Restricted Subsidiary as a matter of applicable law (as reasonably determined by the Borrower in consultation with the Administrative Agent) or such Subsidiary is Surpique or (II) such Material Subsidiary is Coupang Pay and Coupang Pay does not have Consolidated Total Tangible Assets of more than 15% of the Consolidated Total Tangible Assets of Parent and its Restricted Subsidiaries or gross revenues of more than 15% of the consolidated gross revenues of Parent and its Restricted Subsidiaries, in each case determined as of the most recent financial statements that have been delivered pursuant to Section 5.1(a) or (b) of Section 3.4(a))), including a newly acquired or created Subsidiary of Parent, to be an Unrestricted Subsidiary, provided thatSubsidiary if it meets the following qualifications:
(i) such Subsidiary does not own any Equity Interest of Parent or any other Restricted Subsidiary of Parent;
(ii) Parent would be permitted to make an Investment at the time of the designation in an amount equal to the aggregate fair market value (as determined by Parent in good faith) of all Investments of Parent or its Restricted Subsidiaries in such Subsidiary (valued at Parent’s and its Restricted Subsidiaries’ proportional share of the fair market value (as determined by Parent in good faith) of such Subsidiary’s assets less liabilities);
(iii) any Guarantee or other credit support thereof by Parent or any Restricted Subsidiary of Parent is permitted under Section 6.1 or Section 6.7;
(iv) neither Parent nor any Restricted Subsidiary of Parent has any obligation to subscribe for additional Equity Interests of such Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results except to the extent permitted by Section 6.1 or Section 6.7;
(v) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to would result from such designation;
(iivi) neither the Company nor no Subsidiary (other than Surpique) may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any similar designation) for any other Indebtedness of Parent or a Restricted Subsidiary guarantees or provides credit support for the Indebtedness of such Restricted Subsidiary;Parent; and
(iiivii) such Restricted Subsidiary has no outstanding Indebtedness that could trigger a cross-default to the Indebtedness of the Company or any other Restricted Subsidiary;
(iv) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary (or hold an exclusive license in respect of) any IndebtednessIntellectual Property other than ownership or a license resulting from a Permitted IP Transfer. Once so designated, the Subsidiary will remain an Unrestricted Subsidiary, subject to subsection (b).
(b) (i) A Subsidiary previously designated as an Unrestricted Subsidiary which fails to meet the qualifications set forth in subsections (a)(i), (a)(iii), (a)(iv) or any Lien on any property, (a)(vi) of the Company or any Section 5.13 will be deemed to become at that time a Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under subject to the consequences set forth in subsection (d) of Section 4.06 or such Lien would violate Section 4.08;
5.13 and (v) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated as Unrestricted Subsidiaries in accordance with this Section 4.18(a); and
(vi) the Investment deemed to have been made thereby in such newly designated Unrestricted Subsidiary and each other newly designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.07 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Subsidiaries in the Commercial Properties Group in connection with the Restructuring upon designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries, provided that (Aii) the Board of Directors of the Company has determined in good faith that the designation of such Subsidiaries in the Commercial Properties Group as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, the members of the Restructuring Group remain Subsidiaries of the Company, and (C) at the time of such designation, the members of the Restructuring Group remain primarily engaged in the Permitted Businesses).
(b) The Board of Directors Parent may designate any an Unrestricted Subsidiary to be a Restricted Subsidiary if no Event of Default exists at the time of the designation and the designation would not cause an Event of Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary, provided that:,
(i) no Default shall have occurred all existing Investments of Parent and the Restricted Subsidiaries of Parent therein (valued at Parent’s and its Restricted Subsidiaries’ proportional share of the fair market value of its assets less liabilities) will be continuing deemed made at the time of or after giving effect to such designationthat time;
(ii) any all existing Equity Interest or Indebtedness of Parent or a Restricted Subsidiary of Parent held by such Unrestricted Subsidiary will be deemed issued or incurred, as applicable, at that time, and all Liens on property of Parent or a Restricted Subsidiary of Parent securing obligations of such Unrestricted Subsidiary outstanding at the time of such designation which will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.06incurred at that time;
(iii) all existing transactions between it and Parent or any Lien on the property Restricted Subsidiary of such Unrestricted Subsidiary at the time of such designation which Parent will be deemed to have been Incurred by such newly designated Restricted Subsidiary as a result of such designation would be permitted to be Incurred under Section 4.08entered into at that time;
(iv) such Unrestricted Subsidiary is not a Subsidiary it will be released at that time from its Guaranty; and
(v) it will cease to be subject to the provisions of another Unrestricted Subsidiary (that is not concurrently being designated this Agreement as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary pursuant to Section 5.13(b),
(i) all of its Indebtedness and Liens will be deemed incurred at that time for purposes of Section 6.1 and Section 6.2, as applicable;
(vii) if such Restricted Subsidiary all Investments therein previously charged under Section 6.7 will be credited thereunder;
(iii) unless it is not organized under the laws of the PRCan Excluded Subsidiary, such Restricted Subsidiary it shall upon such designation execute and deliver be required to the Trustee a supplemental indenture to this Indenture by which such Restricted Subsidiary shall become a Subsidiary Guarantor or a JV Subsidiary Guarantor pursuant to the extent required under Section 11.105.10; and
(viiv) if such it will be subject to the provisions of this Agreement as a Restricted Subsidiary.
(e) Any designation by the Board of Directors or chief financial officer of Parent of a Subsidiary is not organized under as an Unrestricted Subsidiary after the laws Effective Date will be evidenced to the Administrative Agent by promptly filing with the Administrative Agent a copy of the PRC, all Capital Stock resolutions of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary shall be pledged Board of Directors of Parent giving effect to the extent required under Section 10.02designation and a certificate of a Responsible Officer of Parent certifying that the designation complied with the foregoing provisions.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Coupang, Inc.)