Common use of Subsidiary of an Unrestricted Subsidiary Clause in Contracts

Subsidiary of an Unrestricted Subsidiary. The Borrower may designate: (a) any Subsidiary of the Borrower (including any existing Subsidiary and any Subsidiary acquired or formed after the Effective Date) to be an Unrestricted Subsidiary; provided that: (i) such designation shall be deemed an Investment by the Borrower therein at the date of designation in an amount equal to the fair market value of the Borrower’s (or its Restricted Subsidiaries’) Investments therein, which shall be required to be permitted on such date in accordance with Section 6.04 (and not as an Investment permitted thereby in a Restricted Subsidiary); (ii) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause (iv) of Section 6.01(i); and (iii) immediately after giving effect to such designation, no Event of Default will have occurred and be continuing; and (b) any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that: (i) immediately after giving effect to such designation, no Event of Default will have occurred and be continuing; and (ii) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause (iv) of Section 6.01(i). Any such designation by the Borrower will be notified by the Borrower to the Administrative Agent and the Borrower shall promptly provide to the Administrative Agent a certificate of a Responsible Officer certifying that such designation complied with the applicable foregoing provisions. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness and Liens of such Subsidiary existing at such time.

Subsidiary of an Unrestricted Subsidiary. The Borrower may designate: (a) designate any Subsidiary subsidiary of the Borrower (including any existing Subsidiary subsidiary and any Subsidiary newly acquired or newly formed after the Effective Datesubsidiary) 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 Borrower or any subsidiary of the Borrower (other than any subsidiary of the subsidiary to be so designated); provided that (i) 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 may be cast by all shares or equity interests having ordinary voting power for the election of directors or other governing body are owned, directly or indirectly, by the Borrower, (ii) such designation complies with Section 6.04 and (iii) each of (A) the subsidiary to be so designated and (B) its subsidiaries has not at the time of 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 lender has recourse to any of the assets of the Borrower or any Restricted Subsidiary. The Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that: (i) , immediately after giving effect to such designation no Default shall have occurred and be deemed an Investment by the Borrower therein at the date of designation in an amount equal to the fair market value of the Borrower’s continuing and either (or its Restricted Subsidiaries’) Investments therein, which shall be required to be permitted on such date in accordance with Section 6.04 (and not as an Investment permitted thereby in a Restricted Subsidiary); (iix) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Fixed Charge Coverage Ratio test set forth described in clause (iv) the first paragraph of Section 6.01(i); 6.01 or (y) the Fixed Charge Coverage Ratio for the Borrower and (iii) its Restricted Subsidiaries would be greater than such ratio for the Borrower and its Restricted Subsidiaries immediately after giving effect prior to such designation, no Event of Default will have occurred and be continuing; and (b) any Unrestricted Subsidiary to be in each case on a Restricted Subsidiary; provided that: (i) immediately after giving effect to pro forma basis taking into account such designation, no Event of Default will have occurred and be continuing; and (ii) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause (iv) of Section 6.01(i). Any such designation by the Borrower will shall be notified by the Borrower to the Administrative Agent and the Borrower shall by promptly provide delivering to the Administrative Agent a certificate copy of a Responsible Officer any applicable Board Resolution giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the applicable foregoing provisions. The designation Notwithstanding the foregoing, as of any the Closing Date, all of the subsidiaries of the Borrower will be Restricted Subsidiaries, other than Neiman Marcus Funding Corporation, Xxxx Spade, Gurwitch Products LLC and their respective subsidiaries, which shall be Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness and Liens of such Subsidiary existing at such timeSubsidiaries.

Subsidiary of an Unrestricted Subsidiary. The Borrower Issuer may designate: (a) designate any Subsidiary of the Borrower Issuer (including any existing Subsidiary and any Subsidiary newly acquired or newly formed after Subsidiary), other than the Effective Date) Co-Issuer, to be an Unrestricted SubsidiarySubsidiary 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 Issuer or any Subsidiary of the Issuer (other than solely any Subsidiary of the Subsidiary to be so designated); provided that: that either (ia) such designation shall be deemed an Investment by the Borrower therein at the date of designation in an amount equal to the fair market value of the Borrower’s (or its Restricted Subsidiaries’) Investments therein, which shall be required Subsidiary to be permitted on such date in accordance with Section 6.04 (and not as an Investment permitted thereby in a Restricted Subsidiary); (ii) the Borrower could incur at least so designated has total consolidated assets of $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause (iv) of Section 6.01(i); and (iii) immediately after giving effect to such designation, no Event of Default will have occurred and be continuing; and 1,000 or less or (b) if the Subsidiary to be so designated has total consolidated assets in excess of $1,000, such designation complies with Section 4.07 hereof. 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 Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Issuer as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Issuer will be in Default of Section 4.09 hereof. The Issuer may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that: (i) , immediately after giving effect to such designation, (i) no Event of Default will shall have occurred and be continuing; continuing and (ii) the Borrower could incur at least $1.00 (x) any outstanding Indebtedness of additional Indebtedness such Unrestricted Subsidiary would be permitted to be incurred by a Restricted Subsidiary under Section 4.09 hereof (including pursuant to the Total Leverage Ratio test set forth in clause (ivxiv) of Section 6.01(i)4.09(b) hereof treating such redesignation as an acquisition for the purpose of such clause) and shall be deemed to be incurred thereunder and (y) all Liens encumbering the assets of such Unrestricted Subsidiary would be permitted to be incurred by a Restricted Subsidiary under Section 4.12 hereof and shall be deemed to be incurred thereunder, in each case calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable reference period. Any such designation by the Borrower will Issuer shall be notified by the Borrower Issuer to the Administrative Agent Trustee by promptly filing with the Trustee a copy of the resolution of the Board of the Issuer or any Parent Entity giving effect to such designation and the Borrower shall promptly provide to the Administrative Agent a certificate of a Responsible Officer an Officer’s Certificate certifying that such designation complied with the applicable foregoing provisions. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness and Liens of such Subsidiary existing at such time.

Subsidiary of an Unrestricted Subsidiary. The Borrower may designate: (a) designate any Subsidiary of the Borrower (including any existing Subsidiary and any Subsidiary newly acquired or newly formed after the Effective DateSubsidiary) to be an Unrestricted Subsidiary; provided that: Subsidiary if (i) neither such designation shall be deemed an Investment by Subsidiary nor any of its Subsidiaries owns any Equity Interests or Indebtedness of, or holds any Lien on any property of, Holdings, the Borrower therein at the date of designation in an amount equal to the fair market value of the Borrower’s (or its Restricted Subsidiaries’) Investments therein, which shall be required to be permitted on such date in accordance with Section 6.04 (and not as an Investment permitted thereby in a any other Restricted Subsidiary); , (ii) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause (iv) of Section 6.01(i); and (iii) immediately after giving effect to such designation, the Borrower shall be in compliance with clause (d) of Section 6.04 (it being understood that, for purposes of determining such compliance, all investments made by Loan Parties in, loans or advances made by Loan Parties to and Guarantees made by Loan Parties of Indebtedness of any Subsidiary so designated, shall be deemed to be investments, loans, advances and Guarantees in, to or on behalf of an Unrestricted Subsidiary), (iii) after giving effect to such designation, the Borrower and the Restricted Subsidiaries shall be in compliance on a pro forma basis with the covenants contained in Sections 6.12, 6.13, 6.14, 6.15 and 6.16 recomputed as at the last day of the most recently completed fiscal quarter of the Borrower for which financial statements are available, as if such designation had occurred on the first day of each relevant period for testing such compliance and (iv) no Event of Default will shall have occurred and be continuing; and (b) continuing or would result therefrom. The Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that: Subsidiary if (i) immediately no Default shall have occurred and be continuing or would result therefrom and (ii) after giving effect to such designation, no Event of Default will have occurred and be continuing; and (ii) the Borrower could incur and the Restricted Subsidiaries are in compliance on a pro forma basis with the covenants contained in Sections 6.12, 6.13, 6.14, 6.15 and 6.16 recomputed as at least $1.00 the last day of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause (iv) most recently completed fiscal quarter of Section 6.01(i). Any the Borrower for which financial statements are available, as if such designation by had occurred on the first day of each relevant period for testing such compliance. The Borrower will be notified by the Borrower to shall promptly notify the Administrative Agent in writing of any such designation (and the Borrower Administrative Agent shall promptly provide notify the Lenders) and shall deliver to the Administrative Agent a certificate signed by a Financial Officer of a Responsible Officer the Borrower certifying that such designation complied with the applicable foregoing provisions. The designation provisions together with reasonably detailed calculations demonstrating satisfaction of any Unrestricted Subsidiary the requirement set forth in clause (iii) of the second sentence of this definition or in clause (ii) of the third sentence of this definition, as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness and Liens of such Subsidiary existing at such timeapplicable.

Subsidiary of an Unrestricted Subsidiary. The Borrower Board of Directors of the Parent may designate: (a) designate any Subsidiary of the Borrower (including any existing Subsidiary and any Subsidiary newly acquired or newly formed after the Effective DateSubsidiary) to be an Unrestricted Subsidiary; provided that: Subsidiary so long as (i) neither the Company, the Parent nor any other Subsidiary is directly or indirectly liable for any Indebtedness of such designation shall be deemed an Investment by the Borrower therein at the date of designation in an amount equal to the fair market value of the Borrower’s (or its Restricted Subsidiaries’) Investments thereinSubsidiary, which shall be required to be permitted on such date in accordance with Section 6.04 (and not as an Investment permitted thereby in a Restricted Subsidiary); (ii) no default with respect to any Indebtedness of such Subsidiary would permit (upon notice, lapse of time or otherwise) any holder of any other Indebtedness of the Borrower could incur at least $1.00 Company or the Parent or any Restricted Subsidiary to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its Stated Maturity, (iii) any Investment in such Subsidiary made as a result of additional Indebtedness pursuant to designating such Subsidiary an Unrestricted Subsidiary will not violate the Total Leverage Ratio test set forth in clause provisions of Section 1012, (iv) no Restricted Entity has a contract, agreement, arrangement, understanding or obligation of Section 6.01(i); any kind, whether written or oral, with such Subsidiary other than those that might be obtained at the time from persons who are not Affiliates of the Parent, and (iiiv) none of the Company, the Parent, nor any other Subsidiary of either of them has any obligation (1) to subscribe for additional shares of Capital Stock or other equity interest in such Subsidiary, or (2) to maintain or preserve such Subsidiary's financial condition or to cause such Subsidiary to achieve certain levels of operating results. Any such designation by the Board of Directors of the Parent shall be evidenced to the Trustee by filing a Board Resolution with the Trustee giving effect to such designation. The Board of Directors may designate any Unrestricted Subsidiary as a Restricted Subsidiary if, immediately after giving effect to such designation, there would be no Default or Event of Default will have occurred under this Indenture and be continuing; and the Company or the Parent (bas the case may be) any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that: (i) immediately after giving effect to such designation, no Event of Default will have occurred and be continuing; and (ii) the Borrower could incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 1011. The following definitions will apply for the Total Leverage Ratio test set forth in clause (iv) purposes of interpretation of Section 6.01(i). Any such designation by the Borrower will be notified by the Borrower to the Administrative Agent 1017(a) and the Borrower defined terms contained in this Section 103. Capitalized terms used in Section 1017(a) or in this Section 103 which are not defined in this Section 103 shall promptly provide be given the meaning ascribed to them in Section 102 of this Supplemental Indenture, or, if such term is not defined in such Section 102, in Section 101 of the Administrative Agent a certificate of a Responsible Officer certifying that such designation complied with the applicable foregoing provisions. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness and Liens of such Subsidiary existing at such timeIndenture.

Subsidiary of an Unrestricted Subsidiary. The Borrower may designate: (a) any Subsidiary of the Borrower (including any existing Subsidiary and any Subsidiary acquired or formed after the Effective Date) to be an Unrestricted Subsidiary; provided that: (i) such designation shall be deemed an Investment by the Borrower therein at the date of designation in an amount equal to the fair market value of the Borrower’s (or its Restricted Subsidiaries’) Investments therein, which shall be required to be permitted on such date in accordance with Section 6.04 (and not as an Investment permitted thereby in a Restricted Subsidiary); (ii) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause (iv) of Section 6.01(i); and (iii) immediately after giving effect to such designation, no Event of Default will have occurred and be continuing; and (b) any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that: (i) immediately after giving effect to such designation, no Event of Default will have occurred and be continuing; and (ii) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause (iv) of Section 6.01(i). Any such designation by the Borrower will be notified by the Borrower to the Administrative Agent and the Borrower shall promptly provide to the Administrative Agent a certificate of a Responsible Officer certifying that such designation complied with the applicable foregoing provisions. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness and Liens of such Subsidiary existing at such time. Notwithstanding the foregoing, neither the Foreign Borrower nor any direct or indirect parent company of the Foreign Borrower may be designated as an Unrestricted Subsidiary prior to the repayment in full of all Interim Term Loans outstanding hereunder or under the Interim Term Loan Assumption Agreement.

Subsidiary of an Unrestricted Subsidiary. The Borrower may designate: (a) any Subsidiary of the Borrower (including any existing Subsidiary and any Subsidiary acquired or formed after the Effective Date) to be an Unrestricted Subsidiary; provided that: (i) such designation shall be deemed an Investment by the Borrower therein at the date of designation in an amount equal to the fair market value of the Borrower’s (or its Restricted Subsidiaries’) Investments therein, which shall be required to be permitted on such date in accordance with Section 6.04 (and not as an Investment permitted thereby in a Restricted Subsidiary); (ii) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause (iv) of Section 6.01(i); and (iii) immediately after giving effect to such designation, no Event of Default will have occurred and be continuing; and (iii) no Subsidiary of the Borrower that owns Intellectual Property assets or other strategic assets, in each case, that are material to the business of the Borrower and its Restricted Subsidiaries, taken as a whole, may be designated an Unrestricted Subsidiary; and (b) any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that: (i) , immediately after giving effect to such designationdesignation under this clause (b), no Event of Default will have occurred and be continuing; and (ii) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause (iv) of Section 6.01(i). Any such designation by the Borrower will be notified by the Borrower to the Administrative Agent and the Borrower shall promptly provide to the Administrative Agent a certificate of a Responsible Officer certifying that such designation complied with the applicable foregoing provisions. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness and Liens of such Subsidiary existing at such time.

Subsidiary of an Unrestricted Subsidiary. The Borrower may designate: (a) any Subsidiary of the Borrower (including any existing Subsidiary and any Subsidiary newly acquired or newly formed after the Effective DateSubsidiary) to be an Unrestricted SubsidiarySubsidiary 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 Borrower or any Subsidiary (other than solely any Subsidiary of the Subsidiary to be so designated); provided that: (i) such designation shall be deemed an Investment by each of (i) the Borrower therein at the date of designation in an amount equal to the fair market value of the Borrower’s (or its Restricted Subsidiaries’) Investments therein, which shall be required Subsidiary to be permitted on such date in accordance with Section 6.04 (so designated and not as an Investment permitted thereby in a Restricted Subsidiary); (ii) its Subsidiaries has not, at the Borrower could incur at least $1.00 time of additional 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 Total Leverage Ratio test set forth lender has recourse to any of the assets of the Borrower or any Restricted Subsidiary (other than Equity Interests in clause (iv) of Section 6.01(ian Unrestricted Subsidiary); and (iiiii) immediately after giving effect to such designation, no Event of Default will have occurred and be continuing; and (b) any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that: (i) that immediately after giving effect to such designation, no Event of Default will have occurred and be continuing; and (ii) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause (iv) of Section 6.01(i). Any such designation by the Borrower will be notified by the Borrower to the Administrative Agent and the Borrower shall by promptly provide to filing with the Administrative Agent a certificate of a Responsible Officer certifying that such designation complied with the applicable foregoing provisions. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness and Liens of such Subsidiary existing at such time.an Officer’s Certificate 102 US-DOCS\124480978.17139630401.7

Subsidiary of an Unrestricted Subsidiary. The Borrower may designate: (a) designate any Subsidiary subsidiary of the Borrower (including any existing Subsidiary subsidiary and any Subsidiary newly acquired or newly formed after the Effective Datesubsidiary) 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 Borrower or any subsidiary of the Borrower (other than any subsidiary of the subsidiary to be so designated); provided that (i) 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 may be cast by all shares or equity interests having ordinary voting power for the election of directors or other governing body are owned, directly or indirectly, by the Borrower, (ii) such designation complies with Section 6.04, (iii) each of (A) the subsidiary to be so designated and (B) its subsidiaries has not at the time of 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 lender has recourse to any of the assets of the Borrower or any Restricted Subsidiary and (iv) the Borrower may not designate PETCO to be an Unrestricted Subsidiary. The Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that: (i) , immediately after giving effect to such designation no Default shall have occurred and be deemed an Investment by the Borrower therein at the date of designation in an amount equal to the fair market value of the Borrower’s continuing and either (or its Restricted Subsidiaries’) Investments therein, which shall be required to be permitted on such date in accordance with Section 6.04 (and not as an Investment permitted thereby in a Restricted Subsidiary); (iix) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Fixed Charge Coverage Ratio test set forth described in clause Section 6.01(a) or (ivy) of Section 6.01(i); the Fixed Charge Coverage Ratio for the Borrower and (iii) its Restricted Subsidiaries would be greater than such ratio for the Borrower and its Restricted Subsidiaries immediately after giving effect prior to such designation, no Event of Default will have occurred and be continuing; and (b) any Unrestricted Subsidiary to be in each case on a Restricted Subsidiary; provided that: (i) immediately after giving effect to pro forma basis taking into account such designation, no Event of Default will have occurred and be continuing; and (ii) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause (iv) of Section 6.01(i). Any such designation by the Borrower will shall be notified by the Borrower to the Administrative Agent and the Borrower shall by promptly provide delivering to the Administrative Agent a certificate copy of a Responsible Officer any applicable Board Resolution giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the applicable foregoing provisions. The designation Notwithstanding the foregoing, as of any Unrestricted Subsidiary as a the Closing Date, all of the subsidiaries of the Borrower will be Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness and Liens of such Subsidiary existing at such timeSubsidiaries.

Subsidiary of an Unrestricted Subsidiary. The Borrower Issuer may designate: (a) designate any Subsidiary of the Borrower Issuer (including any existing Subsidiary and any Subsidiary newly acquired or newly formed after the Effective DateSubsidiary) 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 Issuer or any Subsidiary of the Issuer (other than any Subsidiary of the Subsidiary to be so designated), provided that 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 may be cast by all shares or equity interests having ordinary voting power for the election of directors or other governing body are owned, directly or indirectly, by the Issuer, such designation complies with Section 4.07 hereof and each of the Subsidiary to be so designated and its Subsidiaries has not at the time of 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 lender has recourse to any of the assets of the Issuer or any Restricted Subsidiary. The Issuer 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 deemed an Investment by continuing and the Borrower therein at the date of designation in an amount equal to the fair market value of the Borrower’s (or its Restricted Subsidiaries’) Investments therein, which shall be required to be permitted on such date in accordance with Section 6.04 (and not as an Investment permitted thereby in a Restricted Subsidiary); (ii) the Borrower Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Fixed Charge Coverage Ratio test set forth described in clause (iv) of the first sentence under Section 6.01(i); and (iii) immediately after giving effect to 4.09 hereof on a pro forma basis taking into account such designation, no Event of Default will have occurred and be continuing; and (b) any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that: (i) immediately after giving effect to such designation, no Event of Default will have occurred and be continuing; and (ii) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause (iv) of Section 6.01(i). Any such designation by the Borrower will Issuer shall be notified by the Borrower Issuer to the Administrative Agent Trustee by promptly filing with the Trustee a copy of the board resolution giving effect to such designation and the Borrower shall promptly provide to the Administrative Agent a certificate of a Responsible Officer an Officer’s Certificate certifying that such designation complied with the applicable foregoing provisions. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness and Liens of such Subsidiary existing at such time.

Subsidiary of an Unrestricted Subsidiary. The Borrower Board of Directors of the Issuer may designate: (a) designate any Subsidiary of the Borrower Issuer (including any existing Subsidiary and any Subsidiary newly acquired or newly formed after the Effective DateSubsidiary) to be an Unrestricted Subsidiary; 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 Issuer or any Subsidiary of the Issuer (other than any Subsidiary of the Subsidiary to be so designated), provided that: that (ia) 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 may be cast by all shares or equity interests having ordinary voting power for the election of directors or other governing body are owned, directly or indirectly, by the Issuer, (b) such designation shall complies with Section 4.11 and (c) each of (I) the Subsidiary to be deemed an Investment by the Borrower therein so designated and (II) its Subsidiaries has not at the date time of designation in an amount equal designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to the fair market value of the Borrower’s (or its Restricted Subsidiaries’) Investments therein, which shall be required to be permitted on such date in accordance with Section 6.04 (and not as an Investment permitted thereby in a Restricted Subsidiary); (ii) the Borrower could incur at least $1.00 of additional any Indebtedness pursuant to which the Total Leverage Ratio test set forth in clause (iv) lender has recourse to any of Section 6.01(i); and (iii) immediately after giving effect to such designation, no Event the assets of Default will have occurred and be continuing; and (b) the Issuer or any Restricted Subsidiary. The Board of Directors 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 will shall have occurred and be continuing; and (ii1) the Borrower Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Coverage Ratio test set forth Exception described under Section 4.10(a), or (2) the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries would be greater than such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such designation, in clause (iv) of Section 6.01(i)each case on a pro forma basis taking into account such designation. Any such designation by the Borrower will Board of Directors shall be notified by the Borrower Issuer to the Administrative Agent Trustee by promptly filing with the Trustee a copy of the Board Resolution giving effect to such designation and the Borrower shall promptly provide to the Administrative Agent a certificate of a Responsible Officer an Officers' Certificate certifying that such designation complied with the applicable foregoing provisions. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness and Liens of such Subsidiary existing at such time.

Subsidiary of an Unrestricted Subsidiary. The Borrower may designate: (a) designate any Subsidiary of the Borrower (including any existing Subsidiary and any Subsidiary newly acquired or newly formed after Subsidiary of the Effective DateBorrower) to be an Unrestricted SubsidiarySubsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any Lien on any property of, the Borrower or any other Restricted Subsidiary of the Borrower that is not a Subsidiary of the Subsidiary to be so designated; provided that: provided, that (ii)(A) such designation shall was made at or prior to the Closing Date (and any such Subsidiary so designated is set forth on Schedule 1.1(b)), or (B) the Subsidiary to be deemed an Investment by the Borrower therein at the date so designated has total consolidated assets of designation in an amount equal to $1,000 or less or (C) if such Subsidiary has consolidated assets greater than $1,000, then the fair market value of the Borrower’s (or its Restricted Subsidiaries’) Investments therein, which shall be required to such designation would be permitted on such date in accordance with under Section 6.04 (and not as an Investment permitted thereby in a Restricted Subsidiary); 8.7, (ii) any Unrestricted Subsidiary that has been designated as a Restricted Subsidiary may not subsequently be redesignated as an Unrestricted Subsidiary without the Borrower could incur at least $1.00 prior consent of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause Administrative Agent (ivwhich consent shall not be unreasonably withheld or delayed) of Section 6.01(i); and (iii) no Unrestricted Subsidiary may at any time own, or hold an exclusive license in, any Intellectual Property that is material to the business of the Borrower and its Subsidiaries, taken as a whole (as reasonably determined by the Borrower); provided, further, that immediately prior and immediately after giving effect to any such designationdesignation of an “Unrestricted Subsidiary”, (x) the Borrower would have been in compliance with Section 8.1 on the Test Date (assuming compliance with Section 8.1 was required on the Test Date) on a pro forma basis after giving effect to such designation as if completed on the first day of the twelve (12)-month period ending on the most recent Test Date and (y) no Default or Event of Default will shall have occurred and be continuing; and (b) any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that: (i) immediately after giving effect to such designation, no Event of Default will have occurred and be continuing; and (ii) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause (iv) of Section 6.01(i). Any such designation by the Borrower will shall be notified by the Borrower evidenced to the Administrative Agent and the Borrower shall promptly provide to the Administrative Agent by a certificate of signed by a Responsible Officer of the Borrower certifying that such designation complied with the applicable foregoing provisions. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness and Liens of such Subsidiary existing at such time.

Subsidiary of an Unrestricted Subsidiary. The Board of Directors of the Borrower may designate: (a) designate any Subsidiary of the Borrower (including any existing Subsidiary and any Subsidiary newly acquired or newly formed after the Effective DateSubsidiary) to be an Unrestricted Subsidiary; provided thatSubsidiary if all of the following conditions apply: (i) such designation shall be deemed an Investment by the Borrower therein at the date of designation in an amount equal Subsidiary is not liable, directly or indirectly, with respect to the fair market value of the Borrower’s (or its Restricted Subsidiaries’) Investments therein, which shall be required to be permitted on such date in accordance with Section 6.04 (and not as an Investment permitted thereby in a Restricted Subsidiary)any Indebtedness other than Unrestricted Subsidiary Indebtedness; (ii) any Investment in such Subsidiary made as a result of designating such Subsidiary an Unrestricted Subsidiary shall not violate the Borrower could incur at least $1.00 provisions of additional Indebtedness pursuant to Section 7.07; (iii) any designation of a Subsidiary as an Unrestricted Subsidiary shall be treated as a Disposition of the Total Leverage Ratio test set forth in clause assets of such Subsidiary and shall not violate the provisions of Section 7.05(d), (e) or (h) or Section 7.09 and (iv) of Section 6.01(i); and (iii) immediately after giving pro forma effect to the designation of any Subsidiary as an Unrestricted Subsidiary, the Broadcast Cash Flow attributable to all assets of the Unrestricted Subsidiaries for the twelve-month period ending on, or most recently ended prior to, the date of such designation, no Event designation shall not exceed 25% of Default will have occurred and be continuing; and (b) any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that: (i) immediately after giving effect to such designation, no Event of Default will have occurred and be continuing; and (ii) the Broadcast Cash Flow for the Borrower could incur at least $1.00 of additional Indebtedness pursuant to and its Subsidiaries (including the Total Leverage Ratio test set forth in clause (ivUnrestricted Subsidiaries) of Section 6.01(i)for such period. Any such designation by the Borrower will be notified by board of directors of the Borrower shall be evidenced to the Administrative Agent and the Borrower shall promptly provide to by filing with the Administrative Agent a board resolution giving effect to such designation and an officers' certificate of a Responsible Officer certifying that such designation complied complies with the applicable foregoing provisionsconditions. The board of directors of the Borrower may remove the designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute by giving notice thereof to the incurrence at Administrative Agent; provided that immediately after giving effect to the time of designation of any Indebtedness and Liens removal of such Subsidiary existing at designation (x) no Default shall have occurred or be continuing and (y) said removal of such timedesignation shall not violate the provisions of Section 7.04. As of the date hereof, the following are Unrestricted Subsidiaries: (i) KDSM, (ii) Xxxxxxxx Capital and (iii) if and for so long as KDSM is a Designated HYTOPs Subsidiary, KDSM Licensee; provided that if KDSM shall no longer constitute a Designated HYTOPs Subsidiary, each of KDSM and KDSM Licensee shall cease to be Unrestricted Subsidiaries until such time (if ever) as they shall be redesignated Unrestricted Subsidiaries in compliance with requirements hereof.

Subsidiary of an Unrestricted Subsidiary. The Borrower may designate: (a) designate any Subsidiary subsidiary of the Borrower (including any existing Subsidiary subsidiary and any Subsidiary newly acquired or newly formed after the Effective Datesubsidiary) 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 Borrower or any subsidiary of the Borrower (other than any subsidiary of the subsidiary to be so designated or any other Unrestricted Subsidiary); provided that (i) 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 may be cast by all shares or equity interests having ordinary voting power for the election of directors or other governing body are owned, directly or indirectly, by the Borrower, (ii) such designation complies with Section 6.04 and (iii) each of (A) the subsidiary to be so designated and (B) its subsidiaries has not at the time of 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 lender has recourse to any of the assets of Holdings, the Borrower or any Restricted Subsidiary. The Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that: (i) , immediately after giving effect to such designation no Default shall have occurred and be deemed an Investment by the Borrower therein at the date of designation in an amount equal to the fair market value of the Borrower’s continuing and either (or its Restricted Subsidiaries’) Investments therein, which shall be required to be permitted on such date in accordance with Section 6.04 (and not as an Investment permitted thereby in a Restricted Subsidiary); (iix) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Fixed Charge Coverage Ratio test set forth described in clause (iv) the first paragraph of Section 6.01(i); 6.01 or (y) the Fixed Charge Coverage Ratio for the Borrower and (iii) its Restricted Subsidiaries would be equal to or greater than such ratio for the Borrower and its Restricted Subsidiaries immediately after giving effect prior to such designation, no Event of Default will have occurred and be continuing; and (b) any Unrestricted Subsidiary to be in each case on a Restricted Subsidiary; provided that: (i) immediately after giving effect to pro forma basis taking into account such designation, no Event of Default will have occurred and be continuing; and (ii) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause (iv) of Section 6.01(i). Any such designation by the Borrower will shall be notified by the Borrower to the Administrative Agent and the Borrower shall by promptly provide delivering to the Administrative Agent a certificate copy of a Responsible Officer any applicable Board Resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the applicable foregoing provisions. The designation Notwithstanding the foregoing, as of any Unrestricted Subsidiary the Closing Date, all of the subsidiaries of the Borrower will be Restricted Subsidiaries, other than those as a Restricted Subsidiary shall constitute to which the incurrence at Agent has otherwise agreed in the time exercise of designation of any Indebtedness and Liens of such Subsidiary existing at such timeits reasonable discretion.

Subsidiary of an Unrestricted Subsidiary. The Borrower may designate: (a) any Subsidiary of the Borrower (including any existing Subsidiary and any Subsidiary acquired or formed after the Effective Date) to be an Unrestricted Subsidiary; provided that: (i) such designation shall be deemed an Investment by the Borrower therein at the date of designation in an amount equal to the fair market value of the Borrower’s (or its Restricted Subsidiaries’) Investments therein, which shall be required to be permitted on such date in accordance with Section 6.04 (and not as an Investment permitted thereby in a Restricted Subsidiary); and (ii) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause (iv) of Section 6.01(i); and (iii) immediately after giving effect to such designation, no Event of Default will have occurred and be continuing; and (b) any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that: (i) immediately after giving effect to such designation, no Event of Default will have occurred and be continuing; and (ii) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause (iv) of Section 6.01(i). Any such designation by the Borrower will be notified by the Borrower to the Administrative Agent and the Borrower shall promptly provide to the Administrative Agent a certificate of a Responsible Officer certifying that such designation complied with the applicable foregoing provisions. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness and Liens of such Subsidiary existing at such time.

Subsidiary of an Unrestricted Subsidiary. The Borrower may designate: (a) designate any Subsidiary subsidiary of the Borrower (including any existing Subsidiary subsidiary and any Subsidiary newly acquired or newly formed after the Effective Datesubsidiary) 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 Borrower or any subsidiary of the Borrower (other than any subsidiary of the subsidiary to be so designated); provided that (i) 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 may be cast by all shares or equity interests having ordinary voting power for the election of directors or other governing body are owned, directly or indirectly, by the Borrower, (ii) such designation complies with Section 6.04 and (iii) each of (A) the subsidiary to be so designated and (B) its subsidiaries has not at the time of 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 lender has recourse to any of the assets of the Borrower or any Restricted Subsidiary. The Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that: (i) , immediately after giving effect to such designation no Default shall have occurred and be deemed an Investment by the Borrower therein at the date of designation in an amount equal to the fair market value of the Borrower’s continuing and either (or its Restricted Subsidiaries’) Investments therein, which shall be required to be permitted on such date in accordance with Section 6.04 (and not as an Investment permitted thereby in a Restricted Subsidiary); (iix) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Fixed Charge Coverage Ratio test set forth described in clause (iv) the first paragraph of Section 6.01(i); 6.01 or (y) the Fixed Charge Coverage Ratio for the Borrower and (iii) its Restricted Subsidiaries would be greater than such ratio for the Borrower and its Restricted Subsidiaries immediately after giving effect prior to such designation, no Event of Default will have occurred and be continuing; and (b) any Unrestricted Subsidiary to be in each case on a Restricted Subsidiary; provided that: (i) immediately after giving effect to pro forma basis taking into account such designation, no Event of Default will have occurred and be continuing; and (ii) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause (iv) of Section 6.01(i). Any such designation by the Borrower will shall be notified by the Borrower to the Administrative Agent and the Borrower shall by promptly provide delivering to the Administrative Agent a certificate copy of a Responsible Officer any applicable Board Resolution giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the applicable foregoing provisions. The designation Notwithstanding the foregoing, as of any Unrestricted Subsidiary as a the Second Restatement Effective Date, all of the subsidiaries of the Borrower will be Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness and Liens of such Subsidiary existing at such timeSubsidiaries.

Subsidiary of an Unrestricted Subsidiary. The Board of Directors of the Borrower may designate: (a) designate any Subsidiary of the Borrower (including any existing Subsidiary and any Subsidiary newly acquired or newly formed after the Effective DateSubsidiary) to be an Unrestricted SubsidiarySubsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or holds any Lien on any property of, the Borrower or any other Subsidiary of the Borrower that is not a Subsidiary of the Subsidiary to be so designated; provided that: provided, however, that either (iA) the Subsidiary to be so designated has total assets of $1,000 or less or (B) if such Subsidiary has assets greater than $1,000, such designation shall would be deemed permitted under Section 7.1 and the final paragraph of the definition of the term “Investment”; provided, further, that no Subsidiary may be designated as an Investment by Unrestricted Subsidiary if it owns (or holds an exclusive license in respect of) any material Intellectual Property. The Board of Directors of the Borrower therein at the date of designation in an amount equal to the fair market value of the Borrower’s (or its Restricted Subsidiaries’) Investments therein, which shall be required to be permitted on such date in accordance with Section 6.04 (and not as an Investment permitted thereby in a Restricted Subsidiary); (ii) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause (iv) of Section 6.01(i); and (iii) immediately after giving effect to such designation, no Event of Default will have occurred and be continuing; and (b) may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that: (i) provided, however, that immediately after giving effect to such designation, designation (x) the Borrower could Incur $1.00 of Ratio Indebtedness pursuant to Section 7.2(a) and (y) no Event of Default will shall have occurred and be continuing; and (ii) the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in clause (iv) of Section 6.01(i). Any such designation by the Borrower will be notified by Board of Directors of the Borrower shall be evidenced to the Administrative Agent and the Borrower shall by promptly provide delivering to the Administrative Agent a certificate copy of a Responsible Officer the resolution of the Board of Directors of the Borrower giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the applicable foregoing provisions. The designation of any Each Unrestricted Subsidiary as of the Closing Date shall be set forth in Schedule 1.4. Notwithstanding the foregoing, for so long as the ABL Agreement is in effect, in no event shall any Domestic Subsidiary that is a “Restricted Subsidiary shall constitute Subsidiary” under the incurrence at ABL Agreement (to the time of designation of any Indebtedness and Liens of extent such Subsidiary existing concept applies under the ABL Agreement at such time) be deemed an Unrestricted Subsidiary hereunder.