Common use of Subsidiary Guarantor Clause in Contracts

Subsidiary Guarantor. (a) Subject to Section 11.03, the Subsidiary Guarantor may not, directly or indirectly: (x) consolidate or merge with or into another Person (whether or not the Subsidiary Guarantor is the surviving corporation) or (y) sell, assign, transfer, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person (in each case other than the Issuer or the Subsidiary Guarantor); unless: (1) either (i) the Subsidiary Guarantor is the surviving entity or (ii) the Person formed by or surviving any such consolidation or merger (if other than the Subsidiary Guarantor) or to which such sale, assignment, transfer, conveyance or other disposition has been made is an entity organized or existing under the laws of the United States, any state thereof, or the District of Columbia (such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”); (2) the Successor Subsidiary Guarantor assumes all the Obligations of the Subsidiary Guarantor under (x) this Indenture and the Subsidiary Guarantee and (y) if applicable, prior to a Release Event, the Notes Documents, and in connection therewith shall cause instruments to be filed and recorded and take such other actions as may be required by Applicable Law to perfect or continue the perfection of the Lien created under the Notes Documents on the Collateral owned by or transferred to such other Person, in each case, pursuant to documents in customary form as determined by the Issuer in good faith; (3) immediately after such transaction, no Event of Default exists; (4) prior to a Release Event, to the extent any assets of the Person which is merged, consolidated or amalgamated with or into the Person formed by or surviving any such consolidation or merger are assets of the type which would constitute Collateral under the Notes Documents, the Person formed by or surviving any such consolidation or merger will take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Notes Documents in the manner and to the extent required in this Indenture or any of the Notes Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the Notes Documents; and (5) there has been delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such guarantee agreement, if any, and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, complies with this Indenture.

Subsidiary Guarantor. (a) Subject The Company will cause each of its Subsidiaries that guarantees or otherwise becomes liable at any time, whether as a borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under any Material Credit Facility to Section 11.03concurrently therewith: (i) enter into an agreement in form and substance satisfactory to the Required Holders providing for the guaranty by such Subsidiary, the Subsidiary Guarantor may noton a joint and several basis with all other such Subsidiaries, directly or indirectly: of (x) consolidate or merge with or into another Person the prompt payment in full when due of all amounts payable by the Issuer and the Company pursuant to the Notes (whether for principal, interest, Make-Whole Amount or not otherwise) and this Agreement, including all indemnities, fees and expenses payable by the Subsidiary Guarantor is Issuer and the surviving corporation) or Company thereunder and (y) sellthe prompt, assignfull and faithful performance, transferobservance and discharge by the Issuer and the Company of each and every covenant, convey agreement, undertaking and provision required pursuant to the Notes or otherwise dispose this Agreement to be performed, observed or discharged by it (a “Subsidiary Guaranty”); and (ii) deliver the following to each holder of all or substantially all a Note: (a) an executed counterpart of its properties or assetssuch Subsidiary Guaranty; (b) a certificate signed by an authorized responsible officer of such Subsidiary containing representations and warranties on behalf of such Subsidiary to the same effect, mutatis mutandis, as those contained in one or more related transactionsSections 5.1, 5.2, 5.6 and 5.7 of this Agreement (but with respect to another Person (in each case other such Subsidiary and such Subsidiary Guaranty rather than the Issuer or and the Subsidiary Guarantor); unless: (1) either (i) the Subsidiary Guarantor is the surviving entity or (ii) the Person formed by or surviving any such consolidation or merger (if other than the Subsidiary Guarantor) or to which such sale, assignment, transfer, conveyance or other disposition has been made is an entity organized or existing under the laws of the United States, any state thereof, or the District of Columbia (such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”Company); (2c) the Successor Subsidiary Guarantor assumes all the Obligations of the Subsidiary Guarantor under (x) this Indenture and the Subsidiary Guarantee and (y) if applicable, prior to a Release Event, the Notes Documents, and in connection therewith shall cause instruments to be filed and recorded and take such other actions as may be required by Applicable Law to perfect or continue the perfection of the Lien created under the Notes Documents on the Collateral owned by or transferred to such other Person, in each case, pursuant to documents in customary form as determined by the Issuer in good faith; (3) immediately after such transaction, no Event of Default exists; (4) prior to a Release Event, to the extent any assets of the Person which is merged, consolidated or amalgamated with or into the Person formed by or surviving any such consolidation or merger are assets of the type which would constitute Collateral under the Notes Documents, the Person formed by or surviving any such consolidation or merger will take such action as may be reasonably necessary requested by the Required Holders to cause evidence the due organization, continuing existence and, where applicable, good standing of such property Subsidiary and assets to be made subject to the Lien due authorization by all requisite action on the part of such Subsidiary of the Notes Documents in execution and delivery of such Subsidiary Guaranty and the manner and to the extent required in this Indenture or any performance by such Subsidiary of the Notes Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the Notes Documentsits obligations thereunder; and (5d) there an opinion of counsel reasonably satisfactory to the Required Holders covering such matters relating to such Subsidiary and such Subsidiary Guaranty as the Required Holders may reasonably request. (b) At the election of the Company and by written notice to each holder of Notes, any Subsidiary Guarantor that has provided a Subsidiary Guaranty under subparagraph (a) of this Section 9.7 may be discharged from all of its obligations and liabilities under its Subsidiary Guaranty and shall be automatically released from its obligations thereunder without the need for the execution or delivery of any other document by the holders, provided that (i) if such Subsidiary Guarantor is a guarantor or is otherwise liable for or in respect of any Material Credit Facility, then such Subsidiary Guarantor has been delivered to released and discharged (or will be released and discharged concurrently with the Trustee an Officer’s Certificate release of such Subsidiary Guarantor under its Subsidiary Guaranty) under such Material Credit Facility, (ii) at the time of, and an Opinion immediately after giving effect to, such release and discharge, no Default or Event of CounselDefault shall be existing, each stating that (iii) no amount is then due and payable under such consolidationSubsidiary Guaranty, merger or transfer and such guarantee agreement, (iv) if any, and, if a supplemental indenture is required in connection with such transactionSubsidiary Guarantor being released and discharged under any Material Credit Facility, any fee or other form of consideration is given to any holder of Indebtedness under such supplemental indentureMaterial Credit Facility for such release, complies the holders of the Notes shall receive equivalent consideration substantially concurrently therewith and (v) each holder shall have received a certificate of a Responsible Officer certifying as to the matters set forth in clauses (i) through (iv). In the event of any such release, for purposes of Section 10.6, all Indebtedness of such Subsidiary shall be deemed to have been incurred concurrently with this Indenturesuch release.

Subsidiary Guarantor. (a) Subject to Section 11.03, the A Subsidiary Guarantor may not, directly or indirectly: (x) consolidate or merge with or into another Person (whether or not the Subsidiary Guarantor is the surviving corporation) or (y) sell, assign, transfer, convey sell or otherwise dispose of all or substantially all of its properties or assetsassets to, in one or more related transactionsconsolidate with or merge with or into (regardless of whether such Subsidiary Guarantor is the surviving Person), to another Person (in each case Person, other than the Issuer Company or the another Subsidiary Guarantor); , unless: (1) either immediately after giving effect to such transaction, no Default or Event of Default exists; and (2) either: (A) (i) the such Subsidiary Guarantor is the surviving entity Person or (ii) the Person acquiring the properties or assets in any such sale or other disposition or the Person formed by or surviving any such consolidation or merger (if other than the Subsidiary Guarantor) unconditionally assumes all the obligations of that Subsidiary Guarantor under the Notes and the Indenture (including its Subsidiary Guarantee) on terms set forth in the Indenture; or (B) such sale or other disposition is made in compliance with the provisions of Section 4.10. Upon any consolidation or merger of the Company or a Subsidiary Guarantor in circumstances in which such Subsidiary Guarantor’s Subsidiary Guarantee is not being released, or any transfer of all or substantially all of the assets of the Company or a Subsidiary Guarantor in accordance with the foregoing in circumstances in which such Subsidiary Guarantor’s Subsidiary Guarantee is not being released, in which the Company or such Subsidiary Guarantor is not the continuing obligor under the Notes or its Subsidiary Guarantee, as applicable, the surviving entity formed by such consolidation or into which the Company or such Subsidiary Guarantor is merged or the Person to which such the sale, assignmentconveyance, lease, transfer, conveyance disposition or other disposition has been assignment is made is an entity organized will succeed to, and be substituted for, and may exercise every right and power of, the Company or existing such Subsidiary Guarantor under the laws Indenture, the Notes and the Subsidiary Guarantees with the same effect as if such surviving entity had been named therein as the Company or such Subsidiary Guarantor and, except in the case of a lease, the United States, any state thereof, Company or the District of Columbia (such PersonSubsidiary Guarantor, as the case may be, being herein called will be released from the “Successor obligation to pay the principal of and interest on the Notes or in respect of its Subsidiary Guarantee, as the case may be, and all of the Company’s or such Subsidiary Guarantor”); (2) the Successor Subsidiary Guarantor assumes all the Obligations of the Subsidiary Guarantor under (x) this Indenture ’s other obligations and the Subsidiary Guarantee and (y) if applicable, prior to a Release Event, the Notes Documents, and in connection therewith shall cause instruments to be filed and recorded and take such other actions as may be required by Applicable Law to perfect or continue the perfection of the Lien created covenants under the Notes Documents on and the Collateral owned by or transferred to Indenture (including such other PersonSubsidiary Guarantor’s Subsidiary Guarantee), if applicable. Although there is a limited body of case law interpreting the phrase “substantially all,” there is no precise established definition of the phrase under applicable law. Accordingly, in each case, pursuant certain circumstances there may be a degree of uncertainty as to documents in customary form as determined by whether a particular transaction would involve “all or substantially all” of the Issuer in good faith; (3) immediately after such transaction, no Event of Default exists; (4) prior to a Release Event, to the extent any properties or assets of the Person which is merged, consolidated or amalgamated with or into the Person formed by or surviving any such consolidation or merger are assets of the type which would constitute Collateral under the Notes Documents, the Person formed by or surviving any such consolidation or merger will take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Notes Documents in the manner and to the extent required in this Indenture or any of the Notes Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the Notes Documents; and (5) there has been delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such guarantee agreement, if any, and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, complies with this IndenturePerson.

Subsidiary Guarantor. (a) Subject The Company will cause each of its Subsidiaries that guarantees or otherwise becomes liable at any time, whether as a borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under any Material Credit Facility to Section 11.03concurrently therewith: (i) enter into an agreement in form and substance satisfactory to the Required Holders providing for the guaranty by such Subsidiary, the Subsidiary Guarantor may noton a joint and several basis with all other such Subsidiaries, directly or indirectly: of (x) consolidate or merge with or into another Person the prompt payment in full when due of all amounts payable by the Company pursuant to the Notes (whether for principal, interest, Make-Whole Amount or not otherwise) and this Agreement, including all indemnities, fees and expenses payable by the Subsidiary Guarantor is the surviving corporation) or Company thereunder and (y) sellthe prompt, assignfull and faithful performance, transferobservance and discharge by the Company of each and every covenant, convey agreement, undertaking and provision required pursuant to the Notes or otherwise dispose of all this Agreement to be performed, observed or substantially all of its properties or assets, in one or more related transactions, to another Person discharged by it (in each case other than the Issuer or the a “Subsidiary GuarantorGuaranty”); unlessand (ii) deliver the following to each holder of a Note: (1a) either an executed counterpart of such Subsidiary Guaranty; (ib) a certificate signed by an authorized responsible officer of such Subsidiary containing representations and warranties on behalf of such Subsidiary to the same effect, mutatis mutandis, as those contained in Sections 5.1, 5.2, 5.6 and 5.7 of this Agreement (but with respect to such Subsidiary Guarantor is the surviving entity or (ii) the Person formed by or surviving any and such consolidation or merger (if other Subsidiary Guaranty rather than the Subsidiary Guarantor) or to which such sale, assignment, transfer, conveyance or other disposition has been made is an entity organized or existing under the laws of the United States, any state thereof, or the District of Columbia (such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”Company); (2c) the Successor Subsidiary Guarantor assumes all the Obligations of the Subsidiary Guarantor under (x) this Indenture and the Subsidiary Guarantee and (y) if applicable, prior to a Release Event, the Notes Documents, and in connection therewith shall cause instruments to be filed and recorded and take such other actions as may be required by Applicable Law to perfect or continue the perfection of the Lien created under the Notes Documents on the Collateral owned by or transferred to such other Person, in each case, pursuant to documents in customary form as determined by the Issuer in good faith; (3) immediately after such transaction, no Event of Default exists; (4) prior to a Release Event, to the extent any assets of the Person which is merged, consolidated or amalgamated with or into the Person formed by or surviving any such consolidation or merger are assets of the type which would constitute Collateral under the Notes Documents, the Person formed by or surviving any such consolidation or merger will take such action as may be reasonably necessary requested by the Required Holders to cause evidence the due organization, continuing existence and, where applicable, good standing of such property Subsidiary and assets to be made subject to the Lien due authorization by all requisite action on the part of such Subsidiary of the Notes Documents in execution and delivery of such Subsidiary Guaranty and the manner and to the extent required in this Indenture or any performance by such Subsidiary of the Notes Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the Notes Documentsits obligations thereunder; and (5d) there an opinion of counsel reasonably satisfactory to the Required Holders covering such matters relating to such Subsidiary and such Subsidiary Guaranty as the Required Holders may reasonably request. (b) At the election of the Company and by written notice to each holder of Notes, any Subsidiary Guarantor that has provided a Subsidiary Guaranty under subparagraph (a) of this Section 9.7 may be discharged from all of its obligations and liabilities under its Subsidiary Guaranty and shall be automatically released from its obligations thereunder without the need for the execution or delivery of any other document by the holders, provided that (i) if such Subsidiary Guarantor is a guarantor or is otherwise liable for or in respect of any Material Credit Facility, then such Subsidiary Guarantor has been delivered to released and discharged (or will be released and discharged concurrently with the Trustee an Officer’s Certificate release of such Subsidiary Guarantor under its Subsidiary Guaranty) under such Material Credit Facility, (ii) at the time of, and an Opinion immediately after giving effect to, such release and discharge, no Default or Event of CounselDefault shall be existing, each stating that (iii) no amount is then due and payable under such consolidationSubsidiary Guaranty, merger or transfer and such guarantee agreement, (iv) if any, and, if a supplemental indenture is required in connection with such transactionSubsidiary Guarantor being released and discharged under any Material Credit Facility, any fee or other form of consideration is given to any holder of Indebtedness under such supplemental indentureMaterial Credit Facility for such release, complies the holders of the Notes shall receive equivalent consideration substantially concurrently therewith and (v) each holder shall have received a certificate of a Responsible Officer certifying as to the matters set forth in clauses (i) through (iv). In the event of any such release, for purposes of Section 10.6, all Indebtedness of such Subsidiary shall be deemed to have been incurred concurrently with this Indenturesuch release.

Subsidiary Guarantor. (a) Subject to Section 11.03, the The Company shall not permit any Subsidiary Guarantor may not, directly or indirectly: (x) to consolidate with or merge with or into another Person (whether into, or not the Subsidiary Guarantor is the surviving corporation) or (y) sell, assign, convey, transfer, convey lease or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of its properties or assetsassets to, in one or more related transactions, to another any Person (in each case other than the Issuer or the Subsidiary Guarantor); unless: (1) either : (i) the resulting, surviving or transferee Person shall be the Company or a Subsidiary Guarantor is or, if not the surviving entity Company or (ii) the Person formed by or surviving any such consolidation or merger (if other than the a Subsidiary Guarantor) or to which such sale, assignment, transfer, conveyance or other disposition has been made is an entity shall be a corporation organized or and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United StatesStates of America, or any state thereof, State thereof or the District of Columbia (Columbia, and such PersonPerson shall expressly assume, as the case may beby executing a Subsidiary Guarantee, being herein called the “Successor Subsidiary Guarantor”); (2) the Successor Subsidiary Guarantor assumes all the Obligations obligations of the such Subsidiary, if any, under its Subsidiary Guarantor under Guarantee; (x) this Indenture and the Subsidiary Guarantee and (y) if applicable, prior to a Release Event, the Notes Documents, and in connection therewith shall cause instruments to be filed and recorded and take such other actions as may be required by Applicable Law to perfect or continue the perfection of the Lien created under the Notes Documents on the Collateral owned by or transferred to such other Person, in each case, pursuant to documents in customary form as determined by the Issuer in good faith; (3ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default or Event of Default shall have occurred and be continuing; (iii) immediately after giving effect to such transaction, no Event the Company would be able to Incur at least $1.00 of Default exists; Indebtedness pursuant to Section 4.13(a); and (4iv) prior to a Release Event, to the extent any assets of the Person which is merged, consolidated or amalgamated with or into the Person formed by or surviving any such consolidation or merger are assets of the type which would constitute Collateral under the Notes Documents, the Person formed by or surviving any such consolidation or merger will take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Notes Documents in the manner and to the extent required in this Indenture or any of the Notes Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the Notes Documents; and (5) there has been delivered Company delivers to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such guarantee agreementSubsidiary Guarantee, if any, and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, complies with this Indenture. The provisions of clauses (i), (ii) and (iii) above shall not apply to any one or more transactions which constitute an (a) Asset Disposition subject to the applicable provisions of the covenant described under Section 4.17 or (b) the grant of any Lien on the assets of a Restricted Subsidiary to secure outstanding Indebtedness under the Credit Facility, which Lien is permitted by the terms of this Indenture, or any conveyance or transfer of such assets resulting from an exercise of remedies in respect of any such Lien. Notwithstanding the foregoing, but subject to the terms of the first paragraph of Section 5.01 and this Section 5.03, the Company may merge with or into, or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its assets to, any Subsidiary Guarantor, and a Subsidiary Guarantor may merge with or into, or sell, assign, convey, transfer or lease all or substantially all of its assets to, any other Subsidiary Guarantor.