Assignments to Affiliated Lenders. Notwithstanding anything to the contrary contained herein, any Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant to an Auction or on a non-pro rata basis pursuant to open market or other purchases; provided that: (i) no Default or Event of Default has occurred or is continuing or would result therefrom; (ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent; (iii) with respect to all assignments to an Affiliated Lender pursuant to this Section 10.04(f), the assigning Lender and the Affiliated Lender shall execute and deliver to the Administrative Agent and, in the case of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment; (iv) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding; (v) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and (vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions: (A) Subject to clause (B) below, each Affiliated Lender, in connection with any (1) consent (or decision not to consent) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document, (2) other action on any matter related to any Loan Document or (3) direction to the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to any amendment, modification, waiver, consent or other action described in clause (i) or (ii) or (vii) of the first proviso of Section 10.02(b) or that adversely affects such Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall be deemed to have voted its interest as a Lender without discretion in such proportion as the allocation of voting with respect to such matter by Lenders of the same Class of Loans who are not Affiliated Lenders. Subject to clause (B) below, the Borrower and each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A). (B) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender shall have any right to (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents. (C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof as a contribution to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documents.
Appears in 2 contracts
Samples: Credit Agreement (Loar Holdings Inc.), Credit Agreement (Loar Holdings Inc.)
Assignments to Affiliated Lenders. Notwithstanding anything Any Lender may, at any time, assign all or a portion of its rights and obligations under this Agreement to the contrary contained hereinAffiliated Lenders (and such Affiliated Lenders may contribute the same to the Borrower), any Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant subject to an Auction or on a non-pro rata basis pursuant to open market or other purchases; provided thatthe following limitations:
(i) no Default Affiliated Lenders will not receive information provided solely to Lenders by the Administrative Agent or Event any Lender and will not be permitted to attend or participate in meetings attended solely by the Lenders and the Administrative Agent, other than the right to receive notices of Default has occurred Borrowings, notices of prepayments and other administrative notices in respect of its Loans or is continuing or would result therefromCommitments required to be delivered to Lenders pursuant to Article II; provided, however, that the foregoing provisions of this clause will not apply to the Affiliated Debt Funds;
(ii) if for purposes of any amendment, waiver or modification of any Loan Document (including such sale, assignment or transfer is modifications pursuant to one or more Dutch auctions (each, an “Auction”Section 10.01), or, subject to the last paragraph of Section 10.01, any plan of reorganization or similar dispositive restructuring plan pursuant to the U.S. Bankruptcy Code, that in either case does not require the consent of each Lender or each affected Lender or does not adversely affect such Affiliated Lender in any material respect as compared to other Lenders, Affiliated Lenders will be deemed to have voted in the same proportion as the Lenders that are not Affiliated Lenders voting on such matter; and each Affiliated Lender hereby acknowledges, agrees and consents that if, for any reason, its vote to accept or reject any plan pursuant to the U.S. Bankruptcy Code is not deemed to have been so voted, then such vote will be (A) such Affiliated Lender must provide notice of, and the option deemed not to participate in, the Auction to all Lenders be in good faith and (B) the Auction shall be conducted “designated” pursuant to Section 1126(e) of the U.S. Bankruptcy Code such procedures as that the Auction Manager may establish, consistent vote is not counted in determining whether the applicable class has accepted or rejected such plan in accordance with this Section 10.04(f1126(c) and otherwise reasonably acceptable of the U.S. Bankruptcy Code; provided that Affiliated Debt Funds will not be subject to such Affiliated voting limitations and will be entitled to vote as any other Lender, the Auction Manager and the Administrative Agent;
(iii) with respect the aggregate principal amount of Term Loans purchased by assignment pursuant to this Section 10.06 and held at any one time by Affiliated Lenders (other than Affiliated Debt Funds) may not exceed 25.0% of the outstanding principal amount of all assignments Term Loans plus the outstanding principal amount of all term loans made pursuant to any Incremental Term Loan calculated at the time such Loans are purchased (such percentage, the “Affiliated Lender Cap”); provided that to the extent any assignment to an Affiliated Lender pursuant to this Section 10.04(f)would result in the aggregate principal amount of all Loans held by Affiliated Lenders exceeding the Affiliated Lender Cap, the assignment of such excess amount will be void ab initio; and
(iv) the assigning Lender and the Affiliated Lender purchasing such Xxxxxx’s Loans shall execute and deliver to the Administrative Agent and, an assignment agreement substantially in the case form of an Auction, Exhibit D-2 hereto; provided that each Affiliated Xxxxxx agrees to notify the Auction Manager, an Assignment Administrative Agent and Assumption with respect to such assignment;
the Borrower promptly (ivand in any event within 10 Business Days) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be acquires any Person who is also a Lender, shall deliver and each Lender agrees to notify the Administrative Agent and the Borrower promptly (and in any tax forms required to be delivered pursuant to this Agreement; and
(vievent within 10 Business Days) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:
(A) Subject to clause (B) below, each if it becomes an Affiliated Lender. Notwithstanding anything in Section 10.01 or the definition of “Required Lenders” to the contrary, in connection with any for purposes of determining whether the Required Lenders have (1i) consent consented (or decision not to consentconsented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan DocumentDocument or any departure by any Loan Party therefrom, (2ii) other action otherwise acted on any matter related to any Loan Document Document, or (3iii) direction to directed or required the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to the aggregate amount of Loans held by any amendment, modification, waiver, consent or other action described in clause (i) or (ii) or (vii) of the first proviso of Section 10.02(b) or that adversely affects such Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, Debt Funds shall be deemed to have voted its interest as a Lender without discretion be not outstanding to the extent in such proportion as the allocation excess of voting with respect to such matter by Lenders 49.9% of the same Class amount required for all purposes of Loans who are not Affiliated Lenderscalculating whether the Required Lenders have taken any actions. Subject to clause (B) below, the Borrower and each Each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote by its acquisition of any Affiliated Lender, and the vote of Loans outstanding hereunder will be deemed to have waived any Affiliated Lender right it may otherwise have had to bring any action in connection with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in Loans against the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).
(B) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender shall have any right to (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lendersuch, against and will be deemed to have acknowledged and agreed that the Administrative Agent, the Collateral Agent or shall have no liability for any other Lender with respect to losses suffered by any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof Person as a contribution result of any purported assignment to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such from an Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documents.
Appears in 2 contracts
Samples: Credit Agreement (Broadcom Inc.), Credit Agreement (Broadcom Inc.)
Assignments to Affiliated Lenders. Notwithstanding anything Any Lender may, at any time, assign all or a portion of its rights and obligations with respect to the contrary contained herein, any Term Loans to an Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant (including Affiliated Investment Funds) through (x) Dutch Auctions open to an Auction or all Lenders on a non-pro rata basis pursuant to or (y) open market or other purchases; provided that, in each case in accordance with the terms of this Agreement (including Section 12.04), subject, to the extent applicable, to the restrictions set forth in the definitions of “Eligible Assignee” and “Dutch Auction,” in each case, and subject to the following further limitations:
(iA) no Default or Event of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant required to such procedures make a representation that, as of the Auction Manager may establishdate of any assignment, consistent with this Section 10.04(f) and otherwise reasonably acceptable it is not in possession of information that has not been disclosed to such Affiliated Lenderthe Administrative Agent, the Auction Manager and Lenders and that may be material to a Lender’s decision to participate in such assignment or purchase; and each Lender participating in any assignment to Affiliated Lender acknowledges and agrees that in connection with such assignment, (1) the Affiliated Lenders then may have, and later may come into possession of material non-public information, (2) such Lender has independently and, without reliance on the Affiliated Lenders or any of their Subsidiaries, the Borrower or any of their Subsidiaries or the Administrative Agent, the Auction Manager or any of their respective Related Parties, made its own analysis and determination to participate in such assignment notwithstanding such Lender’s lack of knowledge of the material non-public information, (3) none of the Affiliated Lenders or any of their Subsidiaries or Holdings, the Borrower or any of their Subsidiaries shall be required to make any representation that it is not in possession of material non-public information, (4) none of the Affiliated Lenders or any of their Subsidiaries, Holdings, the Borrower or any of their Subsidiaries or the Administrative Agent, the Auction Manager or any of their respective Related Parties shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent permitted by law, any claims such Lender may have against the Affiliated Lenders or any of their Subsidiaries, Holdings, the Borrower or any of its Subsidiaries or the Administrative Agent, the Auction Manager or any of their respective Related Parties, under applicable laws or otherwise, with respect to the nondisclosure of the material non-public information and (5) that the material non-public information may not be available to the Administrative Agent or the other Lenders;
(iiiB) with respect to all assignments to an Restricted Affiliated Lender pursuant to this Lenders only, notwithstanding anything in Section 10.04(f), 12.12 or the assigning Lender and the Affiliated Lender shall execute and deliver definition of “Required Lenders” to the Administrative Agent andcontrary, in for purposes of determining whether the case of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
(iv) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated requisite Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:
(A) Subject to clause (B) below, each Affiliated Lender, in connection with any have (1) consent (or decision not to consent) consented to any amendment, modification, waiver, consent waiver or other action with respect to any of the terms modification of any Loan DocumentDocument (including such modifications pursuant to Section 12.12), (2) other action otherwise acted on any matter related to any Loan Document or (3) direction to directed or required the Administrative Agent, the Auction Manager, the Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees thatexcept in the case of any Restricted Affiliated Lender Amendment, except with respect the aggregate amount of Term Loans owed to any the Restricted Affiliated Lenders or Term Loan Commitments of the Restricted Affiliated Lenders shall be disregarded for purposes of calculating Required Lenders; provided, however, if the Lenders (other than the Restricted Affiliated Lenders) shall have consented to such amendment, modificationwaiver or modification or otherwise approved such action, waiver, consent or other action described in clause (i) or (ii) or (vii) of then the first proviso of Section 10.02(b) or that adversely affects such Restricted Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall be deemed to have voted its interest as a Lender without discretion in such proportion as the allocation of voting with respect affirmatively consented to such matter by Lenders of the same Class of Loans who are not Affiliated Lenders. Subject to clause (B) belowamendment, the Borrower and each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrowerwaiver, the Borrowermodification or other action; provided further, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loansamendment, shall seek (and each Affiliated Lender shall consent) to designate the vote waiver or modification of any Affiliated Lender, and Loan Document that (v) reduces the vote principal amount of any Affiliated Lender with respect to any such plan of reorganization of Term Loans or the Borrower interest rate. fees or any Affiliate of premium, if any, applicable thereto or otherwise reduces the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).
(B) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender shall have any right to (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof as a contribution to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documents.Obligations,
Appears in 2 contracts
Samples: Credit and Guarantee Agreement (Infrastructure & Energy Alternatives, Inc.), Credit and Guarantee Agreement (Infrastructure & Energy Alternatives, Inc.)
Assignments to Affiliated Lenders. Any Lender may, at any time, assign all or a portion of its rights and obligations with respect to Term Loan to an Affiliated Lender through open market purchases, in each case in accordance with the terms of this Agreement (including Section 12.4), subject, to the extent applicable, to the restrictions NYDOCS02/1076196.5 61 set forth in the definitions of “Eligible Assignee” and subject to the following further limitations:
(A) Notwithstanding any other provision herein to the contrary, in the event that a Loan Party is the subject of a proceeding of the type described in Section 10.1(f) (such proceeding, a “Loan Party Insolvency”), each Affiliated Lender shall grant to the Administrative Agent a power of attorney, giving the Administrative Agent the right to vote each Affiliated Lender’s claims on all matters submitted to the Lenders for consent in respect of such Loan Party Insolvency, and the Administrative Agent shall approve such claims in the same proportion as the majority of Lenders (other than Affiliated Lenders) that voted on each matter submitted to such Lenders for approval; provided that (1) the foregoing shall not permit the Administrative Agent to consent to, or refrain from, giving approval in respect of a plan of reorganization pursuant to Title 11 of the Bankruptcy Code of the Loan Party that is the subject of the Loan Party Insolvency (such plan of reorganization being a “Loan Party Plan of Reorganization”), if any Affiliated Lender would, as a consequence thereof, receive treatment under such Loan Party Plan of Reorganization that, on a ratable basis, would be inferior to that of the Lenders (other than such Affiliated Lenders) holding the Term Loan as the affected Affiliated Lender (such Lenders being, “Non‑Restricted Persons”) and any such Loan Party Plan of Reorganization shall require the consent of such Affiliated Lender and (2) to the extent any Non‑Restricted Person would receive superior treatment as part of any Loan Party Plan of Reorganization, as compared to any Affiliated Lender, pursuant to any investment made, or other action taken, by such Non‑Restricted Person in accordance with such Loan Party Plan of Reorganization (but excluding the Term Loan), then such Affiliate Lender’s consent shall not be required, so long as such Affiliate Lender was afforded the opportunity to ratably participate in such investment or to take such action pursuant to the Loan Party Plan of Reorganization. Notwithstanding anything to the contrary contained herein, Section 12.4(a)(iv) shall supersede any Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant to an Auction or on a non-pro rata basis pursuant to open market or other purchases; provided that:
(i) no Default or Event of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this provisions in Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) with respect to all assignments to an Affiliated Lender pursuant to this Section 10.04(f), the assigning Lender and the Affiliated Lender shall execute and deliver 12.6 to the Administrative Agent and, in the case of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
(iv) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:
(A) Subject to clause (B) below, each Affiliated Lender, in connection with any (1) consent (or decision not to consent) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document, (2) other action on any matter related to any Loan Document or (3) direction to the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to any amendment, modification, waiver, consent or other action described in clause (i) or (ii) or (vii) of the first proviso of Section 10.02(b) or that adversely affects such Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall be deemed to have voted its interest as a Lender without discretion in such proportion as the allocation of voting with respect to such matter by Lenders of the same Class of Loans who are not Affiliated Lenders. Subject to clause (B) below, the Borrower and each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A)contrary.
(B) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender shall have any right to (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof as a contribution to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documents.
Appears in 1 contract
Samples: Term Loan and Guarantee Agreement (Evercore Partners Inc.)
Assignments to Affiliated Lenders. Notwithstanding anything to the contrary contained hereinAny Lender may, at any Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant to an Auction time, assign all or on a non-pro rata basis pursuant to open market or other purchases; provided that:
(i) no Default or Event portion of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, its rights and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) obligations with respect to all assignments Loans to an Affiliated Lender pursuant (including Affiliated Investment Funds) through (1) Dutch Auctions open to all Lenders of one or more Classes on a pro rata basis, subject to the limitations set forth in the definition of “Dutch Auction” or (2) open market purchases, in each case in accordance with the terms of this Agreement (including this Section 10.04(f13.4), subject to the assigning Lender restrictions set forth in the definitions of “Eligible Assignee” and the Affiliated Lender shall execute and deliver to the Administrative Agent and, in the case of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
(iv) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and following further governed by, the following provisionslimitations:
(A) Subject notwithstanding anything in Section 13.12 or the definition of “Required Lenders” to clause the contrary, (Bx) below, each Affiliated Lender, in connection with any for purposes of determining whether the Lenders have (1) consent (or decision not to consent) consented to any amendment, modification, waiver, consent waiver or other action with respect to any of the terms modification of any Loan DocumentDocument (including such modifications pursuant to Section 13.12), (2) other action otherwise acted on any matter related to any Loan Document or Document, (3) direction to directed or required the Administrative Agent, the Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to any amendment, modification, waiver, consent or other action described in clause (i) or (ii4) or (vii) subject to Section 2.14, voted on any plan of reorganization pursuant to Title 11 of the first proviso United States Code, that in either case does not require the consent of Section 10.02(b) each Lender or that each affected Lender or does not adversely affects affect such Restricted Affiliated Lender disproportionately in its capacity as a Lender in any material respect as compared to other Lenders, Loans held by Restricted Affiliated Lenders will be disregarded and (y) Affiliated Investment Funds may not in the aggregate account for more than 49.9% of the same Class of Loans, shall be deemed to have voted its interest as a Lender without discretion in such proportion as the allocation of voting with respect to such matter by Lenders of the same Class of Loans who are not Affiliated Lenders. Subject to clause (B) below, the Borrower and each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority amounts set forth in the place and stead calculation of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).Required Lenders;
(B) Notwithstanding anything Restricted Affiliated Lenders shall not receive (x) information provided solely to the contrary in this Agreement, no Affiliated Lender shall have any right to (1) attend (including Lenders by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender and shall not be permitted to which representatives attend or participate in meetings or conference calls attended solely by Lenders and the Administrative Agent and their advisors, other than the right to receive notices of Borrowings, notices of prepayments and other administrative notices in respect of its Loans or Commitments required to be delivered to Lenders pursuant to Section 2 and (y) advice of counsel to the Borrower are not then present, (2) receive any information Lenders or material prepared by the Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, challenge the Collateral Agent and/or one or more Lenders, except attorney-client privilege afforded to the extent such information or materials have been made available to the Borrower or its representatives, or Persons;
(3C) and shall not make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against the Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.;
(CD) An any Loans acquired by an Affiliated Lender may contribute may, with the Loans purchased pursuant to this Section 10.04(f) consent of the Borrower, be contributed to Holdings or (whether through any of its direct or indirect parent thereof as a contribution to the equity entities or otherwise) and exchanged for Indebtedness or Capital Stock of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiariesdirect or indirect parent entities); provided that any such Loans so contributed to Holdings shall be immediately Cancelled;
(E) for the aggregate principal amount of all purposes Loans which may be purchased by Restricted Affiliated Lenders through Dutch Auctions or assigned to the Restricted Affiliated Lenders through open market purchases shall in no event exceed, as calculated at the time of the consummation of any aforementioned Purchases or assignments, 25% of the aggregate principal amount of the Loans then outstanding; and
(F) no Default or Event of Default shall have occurred and be continuing or would otherwise result therefrom. In connection with any assignment to or by an Affiliated Lender, such Affiliated Lender shall identify itself in the applicable Assignment and Assumption as a Restricted Affiliated Lender or an Affiliated Investment Fund, as applicable. Notwithstanding anything to the contrary herein, this Agreement Section 13.4(a)(iv) shall supersede any provisions in Sections 2.8 and all other Loan Documents13.6 to the contrary.
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Samples: Second Lien Credit and Guaranty Agreement (Informatica Inc.)
Assignments to Affiliated Lenders. (i) Notwithstanding anything to the contrary contained hereinin this Agreement, any Lender may assign all or a portion of its Term Loans to an Affiliated Lender may purchase Term Loans hereunder from (other than any Lender pursuant natural Person) (without the consent of any Person but subject to an Auction or on a non-pro rata basis pursuant to open market or other purchasesacknowledgment by the Administrative Agent and the Borrower); provided that:
(i) no Default or Event of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then that (A) such Affiliated Lender must provide notice of, and (whether as a direct purchaser of the option Term Loans or as the ultimate purchaser of the Term Loans through a broker or other intermediary) shall ensure that its identity as an Affiliated Lender is known to participate in, the Auction to all Lenders and assigning Lender; (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) with respect to all assignments to an Affiliated Lender pursuant to this Section 10.04(f), the assigning Lender and the such Affiliated Lender shall execute and deliver to the Administrative Agent and, in the case of an Auction, the Auction Manager, an Assignment and Assumption with respect that contains a Big Boy Representation; (C) for the avoidance of doubt, Lenders shall not be permitted to such assignment;
(iv) no Term Loan may be assigned assign Revolving Credit Commitments or Revolving Loans to an Affiliated Lender pursuant and any purported assignment of Revolving Credit Commitments or Revolving Loans to this Section 10.04(f), if, an Affiliated Lender shall be null and void; (D) at the time of such assignmentassignment and after giving effect thereto, no Event of Default shall have occurred and be continuing and (E) at the time of such assignment after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;held by all Affiliated Lenders shall not exceed 20% of the aggregate principal amount of all Term Loans (other than Other Term Loans) outstanding under this Agreement at the time of such purchase.
(vii) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:
(A) Subject to clause (B) below, each Each Affiliated Lender, in connection with any (1i) consent (or decision not to consent) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document, (2) other action on any matter related to any Loan Document or (3ii) direction to the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to any amendment, modification, waiver, consent or other any action described in clause (i) or (ii) or (vii) of the first proviso of Section 10.02(b) 10.01 or that adversely affects such Affiliated Affiliate Lender in any material respect as compared to other Lenders of the same Class of LoansLenders, such Affiliate Lender shall be deemed to have voted its interest as a Lender without discretion in such proportion as the allocation of voting with respect to such matter by Lenders of who are not Affiliate Lenders.
(iii) Each Affiliated Lender, solely in its capacity as a Lender, hereby further agrees that if any Loan Party shall be subject to any voluntary or involuntary proceeding commenced under any Debtor Relief Law, each Affiliated Lender shall be deemed to have voted in such proceedings in the same Class proportion as the allocation of Loans voting with respect to such matter by those Lenders who are not Affiliated Lenders. Subject , except to clause (B) below, the Borrower and each extent that any plan under the Debtor Relief Laws proposes to treat the Obligations of the Loan Parties under the Loan Documents held by such Affiliated Lender hereby agrees in a manner that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect less favorable to any plan of reorganization that does not adversely affect any such Affiliated Lender in any material respect as compared to other Lenders than the proposed treatment of similar Obligations of the same Class of Loans, shall seek (and each Loan Parties under the Loan Documents held by other Lenders. Each Affiliated Lender shall consent) to designate agrees and acknowledges that the vote foregoing constitutes an irrevocable proxy in favor of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead to vote or consent on behalf of such Affiliated Lender and in any proceeding in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A)manner set forth above.
(Biv) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender shall have any right to (1A) attend (including by telephonetelephone or electronic means) any meeting or discussions (or portion thereof) intended to be solely among the Administrative Agent and Lenders other than the Affiliated Lenders, or any Lender to which representatives of the Borrower are not then present, (2B) receive any information or material prepared by the Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except intended to the extent such information or materials have been made available be disseminated solely to the Borrower or its representatives, or (3) make or bring (or participate in, Lenders other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan DocumentsAffiliated Lenders.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof as a contribution to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documents.
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Assignments to Affiliated Lenders. Notwithstanding anything to the contrary contained hereinAny Lender may, at any Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant to an Auction time, assign all or on a non-pro rata basis pursuant to open market or other purchases; provided that:
(i) no Default or Event portion of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, its rights and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) obligation with respect to all assignments Loans under this Agreement to an Affiliated Lender (including Affiliated Investment Funds) pursuant to this Section 10.04(f)13.6 through (x) Dutch Auctions open to all Lenders of a particular Class of Term Loans subject to such Dutch Auction on a pro rata basis or (y) through open market purchases, in each case subject to the assigning Lender following additional conditions and the limitations: (i) Affiliated Lender Lenders shall execute not receive information provided solely to Lenders and deliver to the Administrative Agent and, in the case of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
(iv) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver to their respective advisors by the Administrative Agent or any tax forms Lender and shall not be permitted to attend or participate in meetings attended solely by Lenders and the Administrative Agent and their advisors, other than the right to receive notices of Borrowings, notices of prepayments and other administrative notices in respect of its Loans or Commitments required to be delivered to Lenders pursuant to this AgreementArticle II; and
(vi) provided that Affiliated Lenders and assignments to Affiliated Lenders will Investment Funds shall not be subject toto such limitation; (ii) notwithstanding anything in Section 13.1 or the definition of “Required Lenders” to the contrary, and further governed by, for purposes of determining whether the following provisions:
(A) Subject to clause (B) below, each Affiliated Lender, in connection with any Lenders have (1) consent (or decision not to consent) consented to any amendment, modification, waiver, consent waiver or other action with respect to any of the terms modification of any Loan DocumentCredit Document (including such modifications pursuant to Section 13.1), (2) other action otherwise acted on any matter related to any Loan Document or Credit Document, (3) direction to directed or required the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Credit Document, agrees that, except with respect to any amendment, modification, waiver, consent or other action described in clause (i) or (ii4) or (vii) voted on any plan of reorganization pursuant to Title 11 of the first proviso United States Code, that in either case does not require the consent of Section 10.02(b) each Lender or that each affected Lender or does not adversely affects affect such Affiliated Lender disproportionately in any material respect as compared to other Lenders, Affiliated Lenders of the same Class of Loans, shall will be deemed to have voted its interest as a Lender without discretion in such the same proportion as the allocation of voting with respect to such matter by Lenders of the same Class of Loans who that are not Affiliated Lenders. Subject to clause (B) below, the Borrower Lenders voting on such matter; and each Affiliated Lender hereby acknowledges, agrees and consents that if a case under if, for any reason, its vote to accept or reject any plan pursuant to Title 11 of the United States Code) is not deemed to have been so voted, then such vote will be (x) deemed not to be in good faith and (y) “designated” pursuant to Section 1126(e) of Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization such that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and is not counted in determining whether the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).
(B) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender shall have any right to (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof as a contribution to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documents.applicable
Appears in 1 contract
Assignments to Affiliated Lenders. Notwithstanding anything to the contrary contained herein, any Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant to an Auction or on a non-pro rata basis pursuant to open market or other purchases; provided that:
(i) no Default or Event of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) with respect to all assignments to an Affiliated Lender pursuant to this Section 10.04(f), the assigning Lender and the Affiliated Lender shall execute and deliver to the Administrative Agent and, in the case of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
(iv) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:
(A) Subject to clause (B) below, each Affiliated Lender, in connection with any (1) consent (or decision not to consent) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document, (2) other action on any matter related to any Loan Document or (3) direction to the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to any amendment, modification, waiver, consent or other action described in clause (i) or (ii) or (vii) of the first proviso of Section 10.02(b) or that adversely affects such Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall be deemed to have voted its interest as a Lender without discretion in such proportion as the allocation of voting with respect to such matter by Lenders of the same Class of Loans who are not Affiliated Lenders. Subject to clause (B) below, the Borrower and each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).
(B) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender shall have any right to (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof as a contribution to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documents.
Appears in 1 contract
Assignments to Affiliated Lenders. Notwithstanding anything to the contrary contained hereinin this Section 10.07 or any other provision of this Agreement, each Lender shall have the right at any time to sell, assign or transfer all or a portion of its Loans owing to it to Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant to an Auction or Lenders on a non-pro rata basis pursuant to open market or other purchases; provided that:
(iprovided, however, that each assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any applicable Loan) no Default or Event of Default has occurred or is continuing or would result therefrom;
through (iix) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”)) open to all applicable Lenders on a pro rata basis; provided that, then (A) such Affiliated Lender must provide notice of, and the option to participate in, of the Auction shall be made to all relevant Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, establish which are consistent with this Section 10.04(f10.07(c) and are otherwise reasonably acceptable to such Affiliated Lenderthe Borrower, the Auction Manager and the Administrative AgentAgent and/or (y) open market purchases, subject to the following limitations:
(i) following repurchase by Parent or any of its Subsidiaries pursuant to this Section 10.07(c), the Loans so repurchased shall, without further action by any Person, be deemed cancelled for all purposes and no longer outstanding (and may not be resold by the Parent or any of its Subsidiaries), for all purposes of this Agreement and all other Loan Documents, including, but not limited to (A) the making of, or the application of, any payments to the Lenders under this Agreement or any other Loan Document, (B) the making of any request, demand, authorization, direction, notice, consent or waiver under this Agreement or any other Loan Document or (C) the determination of Required Lenders, or for any similar or related purpose, under this Agreement or any other Loan Document. In connection with any Loans repurchased and cancelled pursuant to this Section 10.07(c), the Agent is authorized to make appropriate entries in the Register to reflect any such cancellation;
(ii) in connection with an assignment to an Affiliated Lender other than the Parent and its Subsidiaries, (A) such Affiliated Lender shall have identified itself in writing as an Affiliated Lender to the assigning Lender and the Agent prior to the execution of such assignment and (B) the Affiliated Lender shall represent and warrant to the assigning Lender and the Agent that the requirements set forth in clause (iv) below, shall have been satisfied upon consummation of the applicable assignment;
(iii) with respect to all assignments to an Affiliated Lender pursuant to this Section 10.04(f), the assigning Lender and the Affiliated Lender shall execute and deliver to the Administrative Agent and, in the case of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
(iv) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:
(A) Subject to clause (B) below, each Affiliated Lender, in connection with for purposes of any (1) consent (or decision not to consent) to any amendment, modificationwaiver or modification of, waiveror any action under, consent or other action with respect to any of and for the terms purpose of any Loan Document, (2) other action on any matter related to any Loan Document or (3) direction to the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to under, this Agreement or under any other Loan Document, agrees thateach Affiliated Lender will be deemed to have consented in the same proportion as the Lenders that are not Affiliated Lenders consented to such matter, except with respect unless such matter (x) requires the consent of all or all affected Lenders, (y) would reasonably be expected to deprive such Affiliated Lender of its pro rata share of any amendmentpayments to which such Affiliated Lender is entitled under the Loan Documents, modification, waiver, consent or other action described in clause (i) or (iiz) or (vii) of the first proviso of Section 10.02(b) or that adversely affects such Affiliated Lender differently than other Lenders in any material respect as compared to other Lenders of the same Class of Loansrespect, shall be deemed to have voted its interest as a Lender without discretion in such proportion as the allocation of voting with respect to such matter by Lenders of the same Class of Loans who are not Affiliated Lenders. Subject to clause (B) below, the Borrower and each Affiliated Lender hereby agrees that if a case under Title 11 for purposes of the United States Code is commenced against the Borrower, the Borrower, with respect to voting on any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders or plan of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect liquidation pursuant to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause Debtor Relief Laws (B) belowa “Bankruptcy Plan”), each Affiliated Lender solely in its capacity as such hereby irrevocably appoints agrees (x) not to vote on such Bankruptcy Plan, (y) if such Affiliate does vote on such Bankruptcy Plan notwithstanding the Administrative Agent restriction in the foregoing clause (x), such appointment being coupled vote shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws), and such vote shall not be counted in determining whether the applicable class has accepted or rejected such Bankruptcy Plan in accordance with an interestSection 1126(c) as of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws) and (z) not to contest any request by any party for a determination by a U.S. Bankruptcy Court (or other applicable court of competent jurisdiction) effectuating the foregoing clause (y), in each case under this clause (iii)(B) unless such Bankruptcy Plan proposes to treat Loans or claims held by such Affiliated Lender in a manner that is less favorable to such Affiliated Lender than the proposed treatment of Loans or claims held by other Lenders or otherwise adversely affects such Affiliated Lender differently than other Lenders in any material respect;
(iv) the aggregate principal amount of Term Loans made or acquired at any one time by Affiliated Lenders shall not when made or acquired exceed 25% (determined after giving effect to any substantially simultaneous cancellations thereof or contributions thereof to the equity of the Borrower by such Affiliated Lender’s attorney-in-fact, with full authority in ) of the place aggregate principal amount of all Term Loans (including any New Term Loans and stead of or any Extended Loans) outstanding at such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).
(B) Notwithstanding anything to the contrary in under this Agreement, no after giving effect to any substantially simultaneous cancellations thereof;
(v) Affiliated Lender shall have any right Lenders in their respective capacities as such will not be entitled to receive information provided solely to Lenders by the Agent (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower by or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against Administrative Agent, the Collateral Agent or any other Lender with respect to any duties Loan Party or obligations or alleged duties or obligations constitute administrative notices in respect of such Agent or any other such Lender under the Loan Documents.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof as a contribution to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, ’s Term Loans or any Lender) and will not be permitted to attend or participate in meetings or conference calls attended solely by Holdings, such parent, the Borrower Lenders and the Agent;
(vi) in the case of any purchase by the Parent or any of its Subsidiaries, no Default or Event of Default shall have occurred and be continuing at the time of offer for the Dutch auction or trade date of such open market purchase; and
(vii) for all purposes no Affiliated Lender in its capacity as such will be entitled to bring actions against the Agent, in its role as such, or receive advice of counsel or other advisors to the Agent or any other Lenders or challenge the attorney client privilege of their respective counsel. No Affiliated Lender shall be required to represent or warrant that it is not in possession of material non-public information with respect to Parent or any of its Subsidiaries and/or their respective securities in connection with any assignment or purchase permitted by this Agreement and all other Loan DocumentsSection 10.07.
Appears in 1 contract
Assignments to Affiliated Lenders. (i) Notwithstanding anything to the contrary contained hereinin this Agreement, any Lender may assign all or a portion of its Term Loans to an Affiliated Lender may purchase Term Loans hereunder from (other than any Lender pursuant natural Person) (without the consent of any Person but subject to an Auction or on a non-pro rata basis pursuant to open market or other purchasesacknowledgment by the Administrative Agent and the Borrower); provided that:
(i) no Default or Event of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then that (A) such Affiliated Lender must provide notice of, and (whether as a direct purchaser of the option Term Loans or as the ultimate purchaser of the Term Loans through a broker or other intermediary) shall ensure that its identity as an Affiliated Lender is known to participate in, the Auction to all Lenders and assigning Lender; (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) with respect to all assignments to an Affiliated Lender pursuant to this Section 10.04(f), the assigning Lender and the such Affiliated Lender shall execute and deliver to the Administrative Agent and, in the case of an Auction, the Auction Manager, an Assignment and Assumption with respect that contains a Big Boy Representation; (C) for the avoidance of doubt, Lenders shall not be permitted to such assignment;
(iv) no Term Loan may be assigned assign Revolving Credit Commitments or Revolving Loans to an Affiliated Lender pursuant and any purported assignment of Revolving Credit Commitments or Revolving Loans to this Section 10.04(f), if, an Affiliated Lender shall be null and void; (D) at the time of such assignmentassignment and after giving effect thereto, no Event of Default shall have occurred and be continuing and (E) at the time of such assignment after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;held by all Affiliated Lenders shall not exceed 20% of the aggregate principal amount of all Term Loans (other than Other Term Loans) outstanding under this Agreement at the time of such purchase.
(vii) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:
(A) Subject to clause (B) below, each Each Affiliated Lender, in connection with any (1i) consent (or decision not to consent) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document, (2) other action on any matter related to any Loan Document or (3ii) direction to the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to any amendment, modification, waiver, consent or other any action described in clause (i) or (ii) or (vii) of the first proviso of Section 10.02(b) 10.01 or that adversely affects such Affiliated Affiliate Lender in any material respect as compared to other Lenders of the same Class of LoansLenders, such Affiliate Lender shall be deemed to have voted its interest as a Lender without discretion in such proportion as the allocation of voting with respect to such matter by Lenders of who are not Affiliate Lenders.
(iii) Each Affiliated Lender, solely in its capacity as a Lender, hereby further agrees that if any Credit Party shall be subject to any voluntary or involuntary proceeding commenced under any Debtor Relief Law, each Affiliated Lender shall be deemed to have voted in such proceedings in the same Class proportion as the allocation of Loans voting with respect to such matter by those Lenders who are not Affiliated Lenders. Subject , except to clause (B) below, the Borrower and each extent that any plan under the Debtor Relief Laws proposes to treat the Obligations of the Credit Parties under the Loan Documents held by such Affiliated Lender hereby agrees in a manner that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect less favorable to any plan of reorganization that does not adversely affect any such Affiliated Lender in any material respect as compared to other Lenders than the proposed treatment of similar Obligations of the same Class of Loans, shall seek (and each Credit Parties under the Loan Documents held by other Lenders. Each Affiliated Lender shall consent) to designate agrees and acknowledges that the vote foregoing constitutes an irrevocable proxy in favor of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead to vote or consent on behalf of such Affiliated Lender and in any proceeding in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A)manner set forth above.
(Biv) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender shall have any right to (1A) attend (including by telephonetelephone or electronic means) any meeting or discussions (or portion thereof) intended to be solely among the Administrative Agent and Lenders other than the Affiliated Lenders, or any Lender to which representatives of the Borrower are not then present, (2B) receive any information or material prepared by the Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except intended to the extent such information or materials have been made available be disseminated solely to the Borrower or its representatives, or (3) make or bring (or participate in, Lenders other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan DocumentsAffiliated Lenders.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof as a contribution to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documents.
Appears in 1 contract
Assignments to Affiliated Lenders. Notwithstanding anything to the contrary contained hereinAny Lender may, at any Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant to an Auction time, assign all or on a non-pro rata basis pursuant to open market or other purchases; provided that:
(i) no Default or Event portion of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, its rights and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) obligations with respect to all assignments Term Loans to an Affiliated Lender pursuant through Dutch Auctions open to this Section 10.04(f)all Lenders on a pro rata basis, the assigning Lender and the Affiliated Lender shall execute and deliver subject to the Administrative Agent and, in the case of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
(iv) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisionslimitations:
(A) Subject notwithstanding anything in Section 10.1 or the definition of “Required Lenders” to clause (B) belowthe contrary, each Affiliated Lender, in connection with any for purposes of determining whether the Lenders have (1) consent (or decision not to consent) consented to any amendment, modification, waiver, consent waiver or other action with respect to any of the terms modification of any Loan DocumentDocument (including such modifications pursuant to Section 10.1), (2) other action otherwise acted on any matter related to any Loan Document or Document, (3) direction to the directed or required Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to any amendment, modification, waiver, consent or other action described in clause (i) or (ii4) subject to Section 2.17, voted on any plan of reorganization pursuant to the Bankruptcy Code, that in either case does not require the consent of each Lender or (vii) of the first proviso of Section 10.02(b) each affected Lender or that does not adversely affects affect such Affiliated Lender disproportionately in any material respect as compared to other Lenders of the same Class of LoansLenders, shall any Affiliated Lender will be deemed to have voted its interest as a Lender without discretion in such the same proportion as the allocation of voting with respect to such matter by Lenders of the same Class of Loans who that are not Affiliated Lenders. Subject to clause (B) below, the Borrower Lenders voting on such matter; and each Affiliated Lender each hereby acknowledges, agrees and consents that if a case under Title 11 if, for any reason, its vote to accept or reject any plan pursuant to the Bankruptcy Code) is not deemed to have been so voted, then such vote will be (x) deemed not to be in good faith and (y) “designated” pursuant to Section 1126(e) of the United States Bankruptcy Code such that the vote is commenced against not counted in determining whether the Borrower, the Borrower, applicable class has accepted or rejected such plan in accordance with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders Section 1126(c) of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).Bankruptcy Code;
(B) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender shall have any right not receive information provided solely to (1) attend (including Lenders by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender and shall not be permitted to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (attend or participate inin meetings attended solely by Lenders and the Administrative Agent and their advisors, other than as a passive participant the right to receive notices of Borrowings, notices of prepayments and other administrative notices in or recipient respect of its pro rata benefits of) any claim, in its capacity as a Lender, against Administrative Agent, the Collateral Agent Loans or any other Lender with respect Commitments required to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.be delivered to Lenders pursuant to Section 2;
(C) An at the time any Affiliated Lender may contribute the is making purchases of Loans purchased pursuant to a Dutch Auction it shall identify itself as an Affiliated Lender and shall enter into an Assignment and Assumption;
(D) with respect to a Dutch Auction, at the time of such Purchase Notice and Auction Purchase, no Affiliated Lender shall be required to make any representation that it is not in possession of material non-public information with respect to the Company, its Subsidiaries or their respective securities; and
(E) the aggregate principal amount of all Term Loans which may be purchased by any Affiliated Lender through Dutch Auctions shall in no event exceed, as calculated at the time of the consummation of any aforementioned Purchases or assignments, 25% of the aggregate principal amount of the Term Loans then outstanding. Notwithstanding anything to the contrary herein, this Section 10.04(f10.6(b)(iv) to Holdings or shall supersede any direct or indirect parent thereof as a contribution provisions in Section 2.12 to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documentscontrary.
Appears in 1 contract
Samples: Credit Agreement (Navios South American Logistics Inc.)
Assignments to Affiliated Lenders. Notwithstanding anything Any Lender may, at any time, assign all or a portion of its rights and obligations under this Agreement to the contrary contained hereinAffiliated Lenders (and such Affiliated Lenders may contribute the same to the Borrower), any Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant subject to an Auction or on a non-pro rata basis pursuant to open market or other purchases; provided thatthe following limitations:
(i) no Default Affiliated Lenders will not receive information provided solely to Lenders by the Administrative Agent or Event any Lender and will not be permitted to attend or participate in meetings attended solely by the Lenders and the Administrative Agent, other than the right to receive notices of Default has occurred Borrowings, notices of prepayments and other administrative notices in respect of its Loans or is continuing or would result therefromCommitments required to be delivered to Lenders pursuant to Article II; provided, however, that the foregoing provisions of this clause will not apply to the Affiliated Debt Funds;
(ii) if for purposes of any amendment, waiver or modification of any Loan Document (including such sale, assignment or transfer is modifications pursuant to one or more Dutch auctions (each, an “Auction”Section 10.01), or, subject to the last paragraph of Section 10.01, any plan of reorganization or similar dispositive restructuring plan pursuant to the U.S. Bankruptcy Code, that in either case does not require the consent of each Lender or each affected Lender or does not adversely affect such Affiliated Lender in any material respect as compared to other Lenders, Affiliated Lenders will be deemed to have voted in the same proportion as the Lenders that are not Affiliated Lenders voting on such matter; and each Affiliated Lender hereby acknowledges, agrees and consents that if, for any reason, its vote to accept or reject any plan pursuant to the U.S. Bankruptcy Code is not deemed to have been so voted, then such vote will be (A) such Affiliated Lender must provide notice of, and the option deemed not to participate in, the Auction to all Lenders be in good faith and (B) the Auction shall be conducted “designated” pursuant to Section 1126(e) of the U.S. Bankruptcy Code such procedures as that the Auction Manager may establish, consistent vote is not counted in determining whether the applicable class has accepted or rejected such plan in accordance with this Section 10.04(f1126(c) and otherwise reasonably acceptable of the U.S. Bankruptcy Code; provided that Affiliated Debt Funds will not be subject to such Affiliated voting limitations and will be entitled to vote as any other Lender, the Auction Manager and the Administrative Agent;
(iii) with respect the aggregate principal amount of Term Loans purchased by assignment pursuant to this Section 10.06 and held at any one time by Affiliated Lenders (other than Affiliated Debt Funds) may not exceed 25.0% of the outstanding principal amount of all assignments Term Loans plus the outstanding principal amount of all term loans made pursuant to any Incremental Term Loan calculated at the time such Loans are purchased (such percentage, the “Affiliated Lender Cap”); provided that to the extent any assignment to an Affiliated Lender pursuant to this Section 10.04(f)would result in the aggregate principal amount of all Loans held by Affiliated Lenders exceeding the Affiliated Lender Cap, the assignment of such excess amount will be void ab initio;
(iv) Affiliated Lenders may not purchase or otherwise be the assignee of Revolving Loans or Revolving Commitments; and
(v) the assigning Lender and the Affiliated Lender purchasing such Lender’s Loans shall execute and deliver to the Administrative Agent and, an assignment agreement substantially in the case form of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
(iv) no Term Loan may be assigned to an Exhibit D-2 hereto; provided that each Affiliated Lender pursuant agrees to this Section 10.04(f), if, at notify the time of such assignment, after giving effect to such assignment, Affiliated Lenders Administrative Agent and the Borrower promptly (and in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(vany event within 10 Business Days) such Affiliated Lender, if it shall be acquires any Person who is also a Lender, shall deliver and each Lender agrees to notify the Administrative Agent and the Borrower promptly (and in any tax forms required to be delivered pursuant to this Agreement; and
(vievent within 10 Business Days) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:
(A) Subject to clause (B) below, each if it becomes an Affiliated Lender. Notwithstanding anything in Section 10.01 or the definition of “Required Lenders” to the contrary, in connection with any for purposes of determining whether the Required Lenders have (1i) consent consented (or decision not to consentconsented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan DocumentDocument or any departure by any Loan Party therefrom, (2ii) other action otherwise acted on any matter related to any Loan Document Document, or (3iii) direction to directed or required the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to the aggregate amount of Loans held by any amendment, modification, waiver, consent or other action described in clause (i) or (ii) or (vii) of the first proviso of Section 10.02(b) or that adversely affects such Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, Debt Funds shall be deemed to have voted its interest as a Lender without discretion be not outstanding to the extent in such proportion as the allocation excess of voting with respect to such matter by Lenders 49.9% of the same Class amount required for all purposes of Loans who are not Affiliated Lenderscalculating whether the Required Lenders have taken any actions. Subject to clause (B) below, the Borrower and each Each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote by its acquisition of any Affiliated Lender, and the vote of Loans outstanding hereunder will be deemed to have waived any Affiliated Lender right it may otherwise have had to bring any action in connection with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in Loans against the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).
(B) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender shall have any right to (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lendersuch, against and will be deemed to have acknowledged and agreed that the Administrative Agent, the Collateral Agent or shall have no liability for any other Lender with respect to losses suffered by any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof Person as a contribution result of any purported assignment to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such from an Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Broadcom Inc.)
Assignments to Affiliated Lenders. (A) Notwithstanding anything contained herein to the contrary contained hereincontrary, any Affiliated Lender assignments may purchase be made of the Term Loans hereunder from any Lender pursuant to an Auction or on a non-pro rata basis pursuant to open market or other purchasesAffiliated Lender; provided that:
(i1) no Default (x) all such assignments shall be subject to the consent of the Administrative Agent which consent shall not be unreasonably withheld or Event delayed; (y) all holders of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, and the option Term Loans shall be offered a bona fide opportunity to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) with respect to all assignments in each assignment of Term Loans to an Affiliated Lender pursuant on a pro rata basis and on identical terms (including as to this Section 10.04(fany consideration paid in connection therewith); and (z) any consideration paid in connection with such assignment shall be cash and not, for the assigning Lender avoidance of doubt, Indebtedness to be held by (or proceeds of Indebtedness concurrently issued to) the Lenders whose Term Loans are assigned;
(2) the Administrative Agent shall have received a fully executed Assignment and Assumption Agreement, with such modifications as the Administrative Agent may reasonably require (and which may include, among other things, confirmation that the Affiliated Lender shall execute is an “accredited investor” as referenced and deliver to defined in Regulation D under the Administrative Agent and, Securities Act of 1933 and that it is making the purchase for its own account in the case ordinary course and without a view to distribution within the meaning of an Auction, the Auction Manager, an Assignment Securities Act of 1933 and Assumption with respect to such assignment;the Securities Exchange Act of 1934 or other securities laws); and
(iv3) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to any such assignment, the aggregate principal amount of all Term Loans held by all Affiliated Lenders in shall not exceed ten percent (10%) of the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:
(A) Subject to clause (B) below, each Affiliated Lender, in connection with any (1) consent (or decision not to consent) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document, (2) other action on any matter related to any Loan Document or (3) direction to the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to any amendment, modification, waiver, consent or other action described in clause (i) or (ii) or (vii) of the first proviso of Section 10.02(b) or that adversely affects such Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall be deemed to have voted its interest as a Lender without discretion in such proportion as the allocation of voting with respect to such matter by Lenders of the same Class of Loans who are not Affiliated Lenders. Subject to clause (B) below, the Borrower and each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).
(B) Notwithstanding anything contained herein to the contrary in this Agreementcontrary, no Affiliated Lender shall have any right to (1) participate in any matter requiring a vote of the Term Loan Lenders, and the Term Loans held by the Affiliated Lenders shall be deemed to have been voted in same proportion as the allocation of voting with respect such matter by Term Loan Lenders who are not Affiliated Lenders so long as such Affiliated Lender and its Term Loans are treated in connection with the exercise of such right or taking of such action on the same or better terms as the other Term Loan Lenders, (2) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower Loan Parties are not then presentinvited, (23) receive any information or material prepared by the Administrative Agent, the Collateral Agent or any Lender or any communication by or among the Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower Loan Parties or its their representatives, or (34) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against the Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Administrative Agent, Collateral Agent or any other such Lender under the Loan Documents.
(C) An Each Affiliated Lender, solely in its capacity as a Term Loan Lender, hereby agrees, and each Assignment and Assumption Agreement with an Affiliated Lender may contribute shall provide a confirmation that, if any Loan Party shall be subject to any voluntary or involuntary proceeding commended under any Debtor Relief Laws (“Bankruptcy Proceedings”), (1) such Affiliated Lender shall not take any step or action in such Bankruptcy Proceeding to object to, impede or delay the exercise of any right or the taking of any action by the Administrative Agent (or the taking of any action by a third party that is supported by the Administrative Agent) in relation to such Affiliated Xxxxxx’s claim with respect to its Loans (a “Claim”) (including objecting to any debtor in possession financing, use of cash collateral, grant of adequate protection, sale or disposition, compromise or plan of reorganization) so long as such Affiliated Lender is treated in connection with such exercise or action on the same or better terms as the other Term Loan Lenders and (2) with respect to any matter requiring the vote of the Term Loan Lenders during the pendency of a Bankruptcy Proceeding (including voting on any plan of reorganization), the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof as a contribution to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold held by such Affiliated Lender (and any Claim with respect thereto) shall be deemed to be voted in the same proportion as the allocation of voting with respect to such matter by Xxxxxxx who are not Affiliated Lenders so long as such Affiliated Lender is treated in connection with the exercise of such right or taking of such action on the same or better terms as the other Term Loan Lenders. For the avoidance of doubt, the Lenders and each Affiliated Lender agree and acknowledge that the provisions set forth in clauses (1) and (2) of this Section 11.06(b)(vii), and the related provisions set forth in the Assignment and Assumption Agreement for each Affiliated Lender, shall be enforceable as if such provisions constituted a “subordination agreement” as such term is contemplated by, and utilized in, Section 510(a) of the Bankruptcy Code (or comparable provision of any other Debtor Relief Law), and, as such, would be enforceable for all purposes in any case where a Loan Party has filed for protection under any Debtor Relief Law applicable to such Loan Party. Subject to acceptance and recording thereof by Holdingsthe Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such parentLender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Xxxxxx’s having been a Defaulting Lender. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or any transfer by a Lender of its Subsidiaries) rights or obligations under this Agreement that does not comply with this subsection shall be treated for all purposes of this Agreement as a sale by such Lender of a participation in such rights and all other Loan Documentsobligations in accordance with subsection (d) of this Section.
Appears in 1 contract
Assignments to Affiliated Lenders. Notwithstanding anything to the contrary contained hereinAny Lender may, at any Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant to an Auction time, assign all or on a non-pro rata basis pursuant to open market or other purchases; provided that:
(i) no Default or Event portion of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, its rights and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) obligations with respect to all assignments Term Loans to an Affiliated Lender pursuant (including Affiliated Investment Funds) through (1) Dutch Auctions open to all Lenders on a pro rata basis or (2) open market purchases, in each case in accordance with the terms of this Agreement (including Section 10.04(f13.4), the assigning Lender and the Affiliated Lender shall execute and deliver subject to the Administrative Agent and, restrictions set forth in the case definitions of an “Eligible Assignee” and “Dutch Auction,” in each case, the Auction Manager, an Assignment and Assumption with respect to such assignment;
(iv) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver subject to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and following further governed by, the following provisionslimitations:
(A) Subject notwithstanding anything in Section 13.12 or the definition of “Required Lenders” to clause the contrary, (Bx) below, each Affiliated Lender, in connection with any for purposes of determining whether the Lenders have (1) consent (or decision not to consent) consented to any amendment, modification, waiver, consent waiver or other action with respect to any of the terms modification of any Loan DocumentDocument (including such modifications pursuant to Section 13.12), (2) other action otherwise acted on any matter related to any Loan Document or Document, (3) direction to directed or required the Administrative Agent, the Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to any amendment, modification, waiver, consent or other action described in clause (i) or (ii4) or (vii) subject to Section 2.14, voted on any plan of reorganization pursuant to Title 11 of the first proviso United States Code, that in either case does not require the consent of Section 10.02(b) each Lender or that each affected Lender or does not adversely affects affect such Restricted Affiliated Lender disproportionately in any material respect as compared to other Lenders, Restricted Affiliated Lenders of the same Class of Loans, shall will be deemed to have voted its interest as a Lender without discretion in such the same proportion as the allocation of Lenders that are not Restricted Affiliated Lenders voting with respect to on such matter by Lenders and (y) Affiliated Investment Funds may not in the aggregate account for more than 49.9% of the same Class amounts set forth in the calculation of Loans who are not Affiliated Lenders. Subject Required Lenders and any amount in excess of 49.9% will be subject to the limitations set forth in clause (Bx) below, the Borrower and each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).above;
(B) Notwithstanding anything Restricted Affiliated Lenders shall not receive (i) information provided solely to the contrary in this Agreement, no Affiliated Lender shall have any right to (1) attend (including Lenders by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender and shall not be permitted to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (attend or participate inin meetings or conference calls attended solely by Lenders and the Administrative Agent and their advisors, other than as a passive participant the right to receive notices of Borrowings, notices of prepayments and other administrative notices in or recipient respect of its pro rata benefits ofLoans or Commitments required to be delivered to Lenders pursuant to Section 2 and (ii) any claim, in its capacity as a Lender, against advice of counsel to the Lenders or the Administrative Agent, the Collateral Agent or any other Lender with respect challenge the attorney-client privilege afforded to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.Persons;
(C) An at the time any Affiliated Lender may contribute the is making purchases of Loans purchased pursuant to this Section 10.04(fa Dutch Auction or an open market purchase it shall enter into an Assignment and Assumption; Table of Contents (D) to Holdings at the time of such Purchase Notice and Auction Purchase or any direct open market purchase, no Default or indirect parent thereof as a contribution to the equity Event of Holdings Default shall have occurred and be continuing or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documents.would result therefrom; and
Appears in 1 contract
Assignments to Affiliated Lenders. Notwithstanding anything Any Lender may, at any time, assign all or a portion of its rights and obligations under this Agreement to the contrary contained hereinAffiliated Lenders (and such Affiliated Lenders may contribute the same to the Borrower), any Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant subject to an Auction or on a non-pro rata basis pursuant to open market or other purchases; provided thatthe following limitations:
(i) no Default Affiliated Lenders will not receive information provided solely to Lenders by the Administrative Agent or Event any Lender and will not be permitted to attend or participate in meetings attended solely by the Lenders and the Administrative Agent, other than the right to receive notices of Default has occurred Borrowings, notices of prepayments and other administrative notices in respect of its Loans or is continuing or would result therefromCommitments required to be delivered to Lenders pursuant to Article II; provided, however, that the foregoing provisions of this clause will not apply to the Affiliated Debt Funds;
(ii) if for purposes of any amendment, waiver or modification of any Loan Document (including such sale, assignment or transfer is modifications pursuant to one or more Dutch auctions (each, an “Auction”Section 10.01), or, subject to the last paragraph of Section 10.01, any plan of reorganization or similar dispositive restructuring plan pursuant to the U.S. Bankruptcy Code, that in either case does not require the consent of each Lender or each affected Lender or does not adversely affect such Affiliated Lender in any material respect as compared to other Lenders, Affiliated Lenders will be deemed to have voted in the same proportion as the Lenders that are not Affiliated Lenders voting on such matter; and each Affiliated Lender hereby acknowledges, agrees and consents that if, for any reason, its vote to accept or reject any plan pursuant to the U.S. Bankruptcy Code is not deemed to have been so voted, then such vote will be (A) such Affiliated Lender must provide notice of, and the option deemed not to participate in, the Auction to all Lenders be in good faith and (B) the Auction shall be conducted “designated” pursuant to Section 1126(e) of the U.S. Bankruptcy Code such procedures as that the Auction Manager may establish, consistent vote is not counted in determining whether the applicable class has accepted or rejected such plan in accordance with this Section 10.04(f1126(c) and otherwise reasonably acceptable of the U.S. Bankruptcy Code; provided that Affiliated Debt Funds will not be subject to such Affiliated voting limitations and will be entitled to vote as any other Lender, the Auction Manager and the Administrative Agent;
(iii) with respect the aggregate principal amount of Term Loans purchased by assignment pursuant to this Section 10.06 and held at any one time by Affiliated Lenders (other than Affiliated Debt Funds) may not exceed 25.0% of the outstanding principal amount of all assignments Term Loans plus the outstanding principal amount of all term loans made pursuant to any Incremental Term Loan calculated at the time such Loans are purchased (such percentage, the “Affiliated Lender Cap”); provided that to the extent any assignment to an Affiliated Lender pursuant to this Section 10.04(f)would result in the aggregate principal amount of all Loans held by Affiliated Lenders exceeding the Affiliated Lender Cap, the assignment of such excess amount will be void ab initio;
(iv) Affiliated Lenders may not purchase or otherwise be the assignee of Revolving Loans or Revolving Commitments; and
(v) the assigning Lender and the Affiliated Lender purchasing such Xxxxxx’s Loans shall execute and deliver to the Administrative Agent and, an assignment agreement substantially in the case form of an Auction, Exhibit D-2 hereto; provided that each Affiliated Xxxxxx agrees to notify the Auction Manager, an Assignment Administrative Agent and Assumption with respect to such assignment;
the Borrower promptly (ivand in any event within 10 Business Days) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be acquires any Person who is also a Lender, shall deliver and each Lender agrees to notify the Administrative Agent and the Borrower promptly (and in any tax forms required to be delivered pursuant to this Agreement; and
(vievent within 10 Business Days) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:
(A) Subject to clause (B) below, each if it becomes an Affiliated Lender. Notwithstanding anything in Section 10.01 or the definition of “Required Lenders” to the contrary, in connection with any for purposes of determining whether the Required Lenders have (1i) consent consented (or decision not to consentconsented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan DocumentDocument or any departure by any Loan Party therefrom, (2ii) other action otherwise acted on any matter related to any Loan Document Document, or (3iii) direction to directed or required the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to the aggregate amount of Loans held by any amendment, modification, waiver, consent or other action described in clause (i) or (ii) or (vii) of the first proviso of Section 10.02(b) or that adversely affects such Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, Debt Funds shall be deemed to have voted its interest as a Lender without discretion be not outstanding to the extent in such proportion as the allocation excess of voting with respect to such matter by Lenders 49.9% of the same Class amount required for all purposes of Loans who are not Affiliated Lenderscalculating whether the Required Lenders have taken any actions. Subject to clause (B) below, the Borrower and each Each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote by its acquisition of any Affiliated Lender, and the vote of Loans outstanding hereunder will be deemed to have waived any Affiliated Lender right it may otherwise have had to bring any action in connection with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in Loans against the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).
(B) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender shall have any right to (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lendersuch, against and will be deemed to have acknowledged and agreed that the Administrative Agent, the Collateral Agent or shall have no liability for any other Lender with respect to losses suffered by any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof Person as a contribution result of any purported assignment to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such from an Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Broadcom Inc.)
Assignments to Affiliated Lenders. Notwithstanding anything to the contrary contained hereinAny Lender may, at any Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant to an Auction time, assign all or on a non-pro rata basis pursuant to open market or other purchases; provided that:
(i) no Default or Event portion of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, its rights and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) obligations with respect to all assignments Term Loans to an Affiliated Lender pursuant (including Affiliated Investment Funds) through (1) Dutch Auctions open to all Lenders of one or more Classes on a pro rata basis, subject to the limitations set forth in the definition of “Dutch Auction” or (2) open market purchases, in each case in accordance with the terms of this Agreement (including this Section 10.04(f13.4), subject to the assigning Lender restrictions set forth in the definitions of “Eligible Assignee” and the Affiliated Lender shall execute and deliver to the Administrative Agent and, in the case of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
(iv) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and following further governed by, the following provisionslimitations:
(A) Subject notwithstanding anything in Section 13.12 or the definition of “Required Lenders” to clause the contrary, (Bx) below, each Affiliated Lender, in connection with any for purposes of determining whether the Lenders have (1) consent (or decision not to consent) consented to any amendment, modification, waiver, consent waiver or other action with respect to any of the terms modification of any Loan DocumentDocument (including such modifications pursuant to Section 13.12), (2) other action otherwise acted on any matter related to any Loan Document or Document, (3) direction to directed or required the Administrative Agent, the Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to any amendment, modification, waiver, consent or other action described in clause (i) or (ii4) or (vii) subject to Section 2.14, voted on any plan of reorganization pursuant to Title 11 of the first proviso United States Code, that in either case does not require the consent of Section 10.02(b) each Lender or that each affected Lender or does not adversely affects affect such Restricted Affiliated Lender disproportionately in its capacity as a Lender in any material respect as compared to other Lenders, Term Loans held by Restricted Affiliated Lenders of the same Class of Loans, shall will be deemed to have voted its interest as a Lender without discretion in such the same proportion as Lenders that are not Restricted Affiliated Lenders voting on such matterdisregarded and (y) Affiliated Lenders and Affiliated Investment Funds may not in the allocation of voting with respect to such matter by Lenders aggregate account for more than 49.9% of the same Class amounts set forth in the calculation of Loans who are not Affiliated Lenders. Subject Required Lenders and any amount in excess of 49.9% will be subject to the limitations set forth in clause (Bx) below, the Borrower and each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).above;
(B) Notwithstanding anything Restricted Affiliated Lenders shall not receive (x) information provided solely to the contrary in this Agreement, no Affiliated Lender shall have any right to (1) attend (including Lenders by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender and shall not be permitted to which representatives attend or participate in meetings or conference calls attended solely by Lenders and the Administrative Agent and their advisors, other than the right to receive notices of Borrowings, notices of prepayments and other administrative notices in respect of its Loans or Commitments required to be delivered to Lenders pursuant to Section 2 and (y) advice of counsel to the Borrower are not then present, (2) receive any information Lenders or material prepared by the Administrative Agent, the Collateral Agent or challenge the attorney-client privilege afforded to such Persons;
(C) at the time any Affiliated Lender is making purchases of Loans pursuant to a Dutch Auction or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) an open market purchase it shall enter into an Assignment and Assumption and identify itself as an Affiliate Lender;and shall not make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against the Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.;
(CD) An any Term Loans acquired by an Affiliated Lender may contribute may, with the Loans purchased pursuant to this Section 10.04(f) consent of the Borrower, be contributed to Holdings or (whether through any of its direct or indirect parent thereof as a contribution to the equity entities or otherwise) and exchanged for Indebtedness or Capital Stock of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiariesdirect or indirect parent entities); provided that any such Term Loans so contributed to Holdings shall be immediately Cancelled;
(E) for the aggregate principal amount of all purposes Term Loans which may be purchased by Restricted Affiliated Lenders through Dutch Auctions or assigned to the Restricted Affiliated Lenders through open market purchases shall in no event exceed, as calculated at the time of the consummation of any aforementioned Purchases or assignments, 25% of the aggregate principal amount of the Term Loans then outstanding; and
(F) no Default or Event of Default shall have occurred and be continuing or would otherwise result therefrom. Notwithstanding anything to the contrary herein, this Agreement Section 13.4(a)(iv) shall supersede any provisions in Sections 2.8 and all other Loan Documents13.6 to the contrary.
Appears in 1 contract
Samples: Amendment No. 3 (Informatica Inc.)
Assignments to Affiliated Lenders. Notwithstanding anything Any Lender may, at any time, assign all or a portion of its rights and obligations with respect to the contrary contained herein, any Term Loans to an Affiliated Lender through (x) Dutch Auctions open to all Lenders on a pro rata basis or (y) open market purchases (which may purchase Term Loans hereunder from any Lender pursuant to an Auction or be on a non-pro rata basis pursuant to open market or other purchases; provided that:
(i) no Default or Event of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”basis), then (A) such Affiliated Lender must provide notice of, and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) with respect to all assignments to an Affiliated Lender pursuant to this Section 10.04(f), the assigning Lender and the Affiliated Lender shall execute and deliver in each case subject to the Administrative Agent and, in the case of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
(iv) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisionslimitations:
(A) Subject notwithstanding anything in Section 11.1 or the definition of “Required Lenders” to clause (B) belowthe contrary, each Affiliated Lender, in connection with any for purposes of determining whether the Lenders have (1) consent (or decision not to consent) consented to any amendment, modification, waiver, consent waiver or other action with respect to any of the terms modification of any Loan DocumentDocument (including such modifications pursuant to Section 11.1), (2) other action otherwise acted on any matter related to any Loan Document or Document, (3) direction to the directed or required Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to any amendment, modification, waiver, consent or other action described in clause (i) or (ii4) or (vii) subject to Section 2.23, voted on any plan of reorganization pursuant to Title 11 of the first proviso United States Code, that in either case does not require the consent of Section 10.02(b) each Lender or that each affected Lender or does not adversely affects affect such Affiliated Lender disproportionately in any material respect as compared to other Lenders of Lenders, the same Class of Loans, shall Sponsors and any Non-Debt Fund Affiliate will be deemed to have voted its interest as a Lender without discretion in such the same proportion as the allocation of voting with respect to such matter by Lenders of the same Class of Loans who that are not Affiliated Lenders. Subject to clause (B) below, Lenders voting on such matter; and the Borrower Sponsors and each Affiliated Lender Non-Debt Fund Affiliate each hereby acknowledges, agrees and consents that if a case under if, for any reason, its vote to accept or reject any plan pursuant to Title 11 of the United States Code) is not deemed to have been so voted, then such vote will be (x) deemed not to be in good faith and (y) “designated” pursuant to Section 1126(e) of Title 11 of the United States Code such that the vote is commenced against not counted in determining whether the Borrower, the Borrower, applicable class has accepted or rejected such plan in accordance with respect to any plan Section 1126(c) of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders Title 11 of the same Class United States Code; provided that, for the avoidance of Loansdoubt, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower Debt Fund Affiliates shall not be counted. Subject subject to clause (B) belowsuch limitation and shall be entitled to vote as any other Lender; provided, each Affiliated Lender hereby irrevocably appoints further, that, notwithstanding the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-factforegoing or anything herein to the contrary, with full authority Debt Fund Affiliates may not in the place and stead aggregate account for more than 49.9% of such Affiliated Lender and the amounts set forth in the name calculation of such Affiliated Lender, from time Required Lenders and any amount in excess of 49.9% will be subject to time the limitations set forth in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).
(B) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender shall have any right to (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof as a contribution to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documents.;
Appears in 1 contract
Samples: Incremental and Refinancing Amendment (Powerschool Holdings, Inc.)
Assignments to Affiliated Lenders. Notwithstanding anything Any Lender may, at any time, assign all or a portion of its rights and obligations under this Agreement to the contrary contained hereinAffiliated Lenders (and such Affiliated Lenders may contribute the same to the Borrower), any Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant subject to an Auction or on a non-pro rata basis pursuant to open market or other purchases; provided thatthe following limitations:
(i) no Default Affiliated Lenders will not receive information provided solely to Lenders by the Administrative Agent or Event any Lender and will not be permitted to attend or participate in meetings attended solely by the Lenders and the Administrative Agent, other than the right to receive notices of Default has occurred Borrowings, notices of prepayments and other administrative notices in respect of its Loans or is continuing or would result therefromCommitments required to be delivered to Lenders pursuant to Article II; provided, however, that the foregoing provisions of this clause will not apply to the Affiliated Debt Funds;
(ii) if for purposes of any amendment, waiver or modification of any Loan Document (including such sale, assignment or transfer is modifications pursuant to one or more Dutch auctions (each, an “Auction”Section 10.01), or, subject to the last paragraph of Section 10.01, any plan of reorganization or similar dispositive restructuring plan pursuant to the U.S. Bankruptcy Code, that in either case does not require the consent of each Lender or each affected Lender or does not adversely affect such Affiliated Lender in any material respect as compared to other Lenders, Affiliated Lenders will be deemed to have voted in the same proportion as the Lenders that are not Affiliated Lenders voting on such matter; and each Affiliated Lender hereby acknowledges, agrees and consents that if, for any reason, its vote to accept or reject any plan pursuant to the U.S. Bankruptcy Code is not deemed to have been so voted, then such vote will be (A) such Affiliated Lender must provide notice of, and the option deemed not to participate in, the Auction to all Lenders be in good faith and (B) the Auction shall be conducted “designated” pursuant to Section 1126(e) of the U.S. Bankruptcy Code such procedures as that the Auction Manager may establish, consistent vote is not counted in determining whether the applicable class has accepted or rejected such plan in accordance with this Section 10.04(f1126(c) and otherwise reasonably acceptable of the U.S. Bankruptcy Code; provided that Affiliated Debt Funds will not be subject to such Affiliated voting limitations and will be entitled to vote as any other Lender, the Auction Manager and the Administrative Agent;; 119
(iii) with respect the aggregate principal amount of Term Loans purchased by assignment pursuant to this Section 10.06 and held at any one time by Affiliated Lenders (other than Affiliated Debt Funds) may not exceed 25.0% of the outstanding principal amount of all assignments Term Loans plus the outstanding principal amount of all term loans made pursuant to any Incremental Term Loan calculated at the time such Loans are purchased (such percentage, the “Affiliated Lender Cap”); provided that to the extent any assignment to an Affiliated Lender pursuant to this Section 10.04(f)would result in the aggregate principal amount of all Loans held by Affiliated Lenders exceeding the Affiliated Lender Cap, the assignment of such excess amount will be void ab initio;
(iv) Affiliated Lenders may not purchase or otherwise be the assignee of Revolving Loans or Revolving Commitments; and
(v) the assigning Lender and the Affiliated Lender purchasing such Lender’s Loans shall execute and deliver to the Administrative Agent and, an assignment agreement substantially in the case form of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
(iv) no Term Loan may be assigned to an Exhibit D-2 hereto; provided that each Affiliated Lender pursuant agrees to this Section 10.04(f), if, at notify the time of such assignment, after giving effect to such assignment, Affiliated Lenders Administrative Agent and the Borrower promptly (and in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(vany event within 10 Business Days) such Affiliated Lender, if it shall be acquires any Person who is also a Lender, shall deliver and each Lender agrees to notify the Administrative Agent and the Borrower promptly (and in any tax forms required to be delivered pursuant to this Agreement; and
(vievent within 10 Business Days) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:
(A) Subject to clause (B) below, each if it becomes an Affiliated Lender. Notwithstanding anything in Section 10.01 or the definition of “Required Lenders” to the contrary, in connection with any for purposes of determining whether the Required Lenders have (1i) consent consented (or decision not to consentconsented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan DocumentDocument or any departure by any Loan Party therefrom, (2ii) other action otherwise acted on any matter related to any Loan Document Document, or (3iii) direction to directed or required the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to the aggregate amount of Loans held by any amendment, modification, waiver, consent or other action described in clause (i) or (ii) or (vii) of the first proviso of Section 10.02(b) or that adversely affects such Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, Debt Funds shall be deemed to have voted its interest as a Lender without discretion be not outstanding to the extent in such proportion as the allocation excess of voting with respect to such matter by Lenders 49.9% of the same Class amount required for all purposes of Loans who are not Affiliated Lenderscalculating whether the Required Lenders have taken any actions. Subject to clause (B) below, the Borrower and each Each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote by its acquisition of any Affiliated Lender, and the vote of Loans outstanding hereunder will be deemed to have waived any Affiliated Lender right it may otherwise have had to bring any action in connection with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in Loans against the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).
(B) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender shall have any right to (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lendersuch, against and will be deemed to have acknowledged and agreed that the Administrative Agent, the Collateral Agent or shall have no liability for any other Lender with respect to losses suffered by any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof Person as a contribution result of any purported assignment to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such from an Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documents.
Appears in 1 contract
Samples: Credit Agreement
Assignments to Affiliated Lenders. Notwithstanding anything Subject to clauses (A), (B) and (C) below, any Lender may assign all or a portion of the Term Loan (subject to the contrary limitations contained hereinin Sections 10.06(b)(i)) to Affiliated Lenders (excluding Holdings and its Subsidiaries), without the consent of any Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant Person but subject to an Auction or on a non-pro rata basis pursuant to open market or other purchasesacknowledgment by the Administrative Agent; provided that:
(i) no Default or Event of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) with respect to all assignments to an Affiliated Lender pursuant to this Section 10.04(f), the assigning Lender and the Affiliated Lender assignee shall execute and deliver to the Administrative Agent and, in the case of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
Assumption, (ivii) at no time may the aggregate principal amount of the Term Loan may be assigned held by the Affiliated Lenders (other than Holdings and its Subsidiaries) exceed 25% of the aggregate principal amount of the Term Loans and incremental term loans then outstanding, and (iii) after giving effect to an assignment the number of Affiliated Lender pursuant to this Section 10.04(f), if, Lenders holding the Term Loans and incremental term loans shall not constitute 50% or more of the aggregate number of Lenders holding a portion of the Term Loans and incremental term loans at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:.
(A) Subject Notwithstanding anything to the contrary in this Section 10.06, but subject to the rights contained in clause (C) below, the Affiliated Lenders shall not have any right to (1) attend (including by telephone or electronic means) any meeting or discussions (or portion thereof) among the Administrative Agent and any Lender to which representatives of the Borrowers or the Guarantors are not invited, or (2) receive any information or material prepared by the Administrative Agent or any Lender or any communication by or among the Administrative Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrowers or the Guarantors or their representatives.
(B) belowNotwithstanding anything to the contrary in this Section 10.06 or the definition of “Required Lenders”, each Affiliated Lender, in connection with any for purposes of determining whether the Required Lenders have (1) consent consented (or decision not to consentconsented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan DocumentDocument or any departure by any Borrower or any Guarantor therefrom, (2) other action otherwise acted on any matter related to any Loan Document Document, or (3) direction to directed or required the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees thatall or any portion of the Term Loan held by the Affiliated Lenders shall be deemed, except to the extent not adversely affecting the Affiliated Lenders (other than Holdings and its Subsidiaries) disproportionately as compared to other Lenders, to be not outstanding; provided that no amendment, modification, waiver, consent or other action with respect to any Loan Document shall deprive the Affiliated Lenders of its pro rata share of any payments to which the Affiliated Lenders is entitled under the Loan Documents or any vote which affects the Affiliated Lenders disproportionately without the Affiliated Lenders providing its consent; (x) solely with respect to any amendment, modification, waiver, consent or other action described in clause (i) which fees are paid or (ii) or (vii) of the first proviso of Section 10.02(b) or that adversely affects otherwise received by consenting Lenders and solely in connection with determining to which Lenders such Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, fees shall be deemed paid, the Affiliated Lenders shall be treated as having consented thereto, (y) the Affiliated Lenders agree to have voted execute and deliver to the Administrative Agent any instrument reasonably requested by the Administrative Agent to evidence the voting of its interest as a Lender without discretion in such proportion as accordance with the allocation provisions of voting with respect to such matter by Lenders this Section 10.06(g); provided that if any of the same Class of Loans who are not Affiliated Lenders. Subject Lenders fail to clause (B) below, the Borrower and each Affiliated Lender hereby agrees that if a case under Title 11 promptly execute such instrument such failure shall in no way prejudice any of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek Administrative Agent’s rights under this paragraph and (and each Affiliated Lender shall consentz) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent is hereby appointed (such appointment being coupled with an interest) by the Affiliated Lenders as each such Affiliated LenderPerson’s attorney-in-attorney in fact, with full authority in the place and stead of such Affiliated Lender Person and in the name of such Affiliated LenderPerson, from time to time in the Administrative Agent’s reasonable discretion to take any action and to execute any and instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause Section 10.06(g) and (Aii) Affiliated Lenders in their capacities as a Lender shall retain the right to consent to an extension of the maturity date of their Term Loans, reduction in the principal amount of their Term Loans, reduction in the interest rate thereof or postponement of the scheduled due date therefor). Affiliated Lenders may, with the consent of Borrower Agent and pursuant to documentation reasonably satisfactory to the Administrative Agent, contribute the Term Loans held by them as an equity contribution to the Borrowers (whether through any of its direct or indirect parent companies or otherwise) in exchange for debt or equity securities of the Borrowers or such parent company that are otherwise permitted to be issued by such Person at such time. If any Borrower or any Guarantor is the subject of any proceeding under any Debtor Relief Laws no Affiliated Lender shall (i) vote in opposition to a plan of reorganization of such Borrower or Guarantor that has been approved by all Lenders (exclusive of all Affiliated Lenders) unless such plan of reorganization affects such Affiliated Lender in its capacity as a Lender in a disproportionately adverse manner than its effect on other Lenders or (ii) vote in favor of any plan of reorganization of such Borrower or Guarantor that has not been approved by Lenders (exclusive of all Affiliated Lenders) holding a majority of the outstanding principal amount of the Loans (exclusive of the amount held by all Affiliated Lenders).
(BC) Notwithstanding anything to the contrary in this Agreement, no The Affiliated Lender shall have any right to Lenders (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of Holdings and its pro rata benefits of) any claimSubsidiaries), in its capacity as a LenderLender of a portion of the Term Loan, against Administrative in its sole and absolute discretion and with Borrower Agent’s consent, may, but is not required to, make one or more capital contributions or assignments of the Collateral Agent or any other Lender portion of the Term Loan that it acquires in accordance with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) 10.06 to Holdings or any direct or indirect parent thereof as a contribution to the solely in exchange for (x) equity interests of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stocky) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence extent permitted to be incurred under this Agreement, unsecured Subordinated Indebtedness issued by Holdings to Affiliated Lenders, as applicable, in each case, upon no less than 3 Business Days’ prior written notice to the Administrative Agent. Immediately upon the acquisition by Holdings of such portion of the Term Loan, it shall immediately be deemed canceled and no longer outstanding (and may not be resold by transfer such Affiliated Lender, by Holdings, such parent, portion to the Borrowers. Immediately upon any Borrower or any of its a Borrower’s Subsidiaries’ acquisition of any portion of the Term Loan, (x) such portion of the Term Loan and all rights and obligations as a Lender related thereto shall for all purposes of (including under this Agreement and all Agreement, the other Loan DocumentsDocuments and otherwise) be deemed to be irrevocably prepaid, terminated, extinguished, cancelled and of no further force and effect and such Borrower or such Borrower’s Subsidiary shall neither obtain nor have any rights as a Lender hereunder or under the other Loan Documents by virtue of such capital contribution or assignment and (y) Borrowers shall deliver to the Administrative Agent a written acknowledgement and agreement executed by a Responsible Officer and in form and substance reasonably acceptable to the Administrative Agent acknowledging the irrevocable prepayment, termination, extinguishment and cancellation of such portion of the Term Loan and confirming that such Borrowers have no rights as a Lender under this Agreement, the other Loan Documents or otherwise. The parties hereto agree that any prepayment, termination, extinguishment and/or cancellation of any Loans as contemplated by this Section 10.06 shall be disregarded for purposes of calculating each of Adjusted Consolidated EBITDA and Excess Cash Flow for any applicable period of calculation.
(D) No Affiliated Lenders acquiring Loans through an assignment shall be required to make any representation that it is not in possession of material non-public information with respect to Holdings or its Subsidiaries or their respective securities.
Appears in 1 contract
Assignments to Affiliated Lenders. (A) Notwithstanding anything contained herein to the contrary contained hereincontrary, any Affiliated Lender assignments may purchase be made of the Term Loans (including any Incremental Term Loan established hereunder from any Lender pursuant after the Closing Date) to an Auction or on a non-pro rata basis pursuant to open market or other purchasesAffiliated Lender; provided that:
(i1) no Default all such assignments shall be subject to the consent of the Administrative Agent which consent shall not be unreasonably withheld or Event of Default has occurred or is continuing or would result therefromdelayed;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, and the option to participate in, the Auction to all Lenders and (B2) the Auction Administrative Agent shall be conducted pursuant to have received a fully executed Assignment and Assumption Agreement, with such procedures modifications as the Auction Manager Administrative Agent may establishreasonably require (and which may include, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lenderamong other things, the Auction Manager and the Administrative Agent;
(iii) with respect to all assignments to an Affiliated Lender pursuant to this Section 10.04(f), the assigning Lender and confirmation that the Affiliated Lender shall execute is an “accredited investor” as referenced and deliver to defined in Regulation D under the Administrative Agent and, Securities Act of 1933 and that it is making the purchase for its own account in the case ordinary course and without a view to distribution within the meaning of an Auction, the Auction Manager, an Assignment Securities Act of 1933 and Assumption with respect to such assignment;the Securities Exchange Act of 1934 or other securities laws); and
(iv3) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to any such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(vincluding any Incremental Term Loan established hereunder after the Closing Date) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) held by all Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:
shall not exceed ten percent (A) Subject to clause (B) below, each Affiliated Lender, in connection with any (1) consent (or decision not to consent) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document, (2) other action on any matter related to any Loan Document or (3) direction to the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to any amendment, modification, waiver, consent or other action described in clause (i) or (ii) or (vii10%) of the first proviso aggregate principal amount of Section 10.02(ball Term Loans (including any Incremental Term Loan established hereunder after the Closing Date) or that adversely affects such Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall be deemed to have voted its interest as a Lender without discretion in such proportion as the allocation of voting with respect to such matter by Lenders of the same Class of Loans who are not Affiliated Lenders. Subject to clause (B) below, the Borrower and each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A)then outstanding.
(B) Notwithstanding anything contained herein to the contrary in this Agreementcontrary, no Affiliated Lender shall have any right to (1i) participate in any matter requiring a vote of the Term Loan Lenders, and the Term Loans held by the Affiliated Lenders shall be deemed to have been voted in same proportion as the allocation of voting with respect such matter by Term Loan Lenders who are not Affiliated Lenders so long as such Affiliated Lender and its Term Loans are treated in connection with the exercise of such right or taking of such action on the same or better terms as the other Term Loan Lenders, (ii) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower Loan Parties are not then presentinvited, (2iii) receive any information or material prepared by the Administrative Agent, the Collateral Agent or any Lender or any communication by or among the Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower Loan Parties or its their representatives, or (3iv) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against the Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Administrative Agent, Collateral Agent or any other such Lender under the Loan Documents.
(C) An Each Affiliated Lender, solely in its capacity as a Term Loan Lender, hereby agrees, and each Assignment and Assumption Agreement with an Affiliated Lender may contribute shall provide a confirmation that, if any Loan Party shall be subject to any voluntary or involuntary proceeding commended under any Debtor Relief Laws (“Bankruptcy Proceedings”), (i) such Affiliated Lender shall not take any step or action in such Bankruptcy Proceeding to object to, impede or delay the exercise of any right or the taking of any action by the Administrative Agent (or the taking of any action by a third party that is supported by the Administrative Agent) in relation to such Affiliated Lender’s claim with respect to its Loans (a “Claim”) (including, without limitation, objecting to any debtor in possession financing, use of cash collateral, grant of adequate protection, sale or disposition, compromise or plan of reorganization) so long as such Affiliated Lender is treated in connection with such exercise or action on the same or better terms as the other Term Loan Lenders and (ii) with respect to any matter requiring the vote of the Term Loan Lenders during the pendency of a Bankruptcy Proceeding (including, without limitation, voting on any plan of reorganization), the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof as a contribution to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold held by such Affiliated Lender (and any Claim with respect thereto) shall be deemed to be voted in the same proportion as the allocation of voting with respect to such matter by Lenders who are not Affiliated Lenders so long as such Affiliated Lender is treated in connection with the exercise of such right or taking of such action on the same or better terms as the other Term Loan Lenders. For the avoidance of doubt, the Lenders and each Affiliated Lender agree and acknowledge that the provisions set forth in clauses (i) and (ii) of this Section 11.06(b)(vii), and the related provisions set forth in the Assignment and Assumption Agreement for each Affiliated Lender, shall be enforceable as if such provisions constituted a “subordination agreement” as such term is contemplated by, and utilized in, Section 510(a) of the Bankruptcy Code (or comparable provision of any other Debtor Relief Law), and, as such, would be enforceable for all purposes in any case where a Loan Party has filed for protection under any Debtor Relief Law applicable to such Loan Party. Subject to acceptance and recording thereof by Holdingsthe Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such parentLender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request, a Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or any transfer by a Lender of its Subsidiaries) rights or obligations under this Agreement that does not comply with this subsection shall be treated for all purposes of this Agreement as a sale by such Lender of a participation in such rights and all other Loan Documentsobligations in accordance with subsection (d) of this Section.
Appears in 1 contract
Assignments to Affiliated Lenders. Any Lender may, at any time, assign all or a portion of its rights and obligations with respect to Term Loan to an Affiliated Lender through open market purchases, in each case in accordance with the terms of this Agreement (including Section 12.4), subject, to the extent applicable, to the restrictions NYDOCS02/1076196.5 61 set forth in the definitions of “Eligible Assignee” and subject to the following further limitations: (A) Notwithstanding any other provision herein to the contrary, in the event that a Loan Party is the subject of a proceeding of the type described in Section 10.1(f) (such proceeding, a “Loan Party Insolvency”), each Affiliated Lender shall grant to the Administrative Agent a power of attorney, giving the Administrative Agent the right to vote each Affiliated Lender’s claims on all matters submitted to the Lenders for consent in respect of such Loan Party Insolvency, and the Administrative Agent shall approve such claims in the same proportion as the majority of Lenders (other than Affiliated Lenders) that voted on each matter submitted to such Lenders for approval; provided that
(1) the foregoing shall not permit the Administrative Agent to consent to, or refrain from, giving approval in respect of a plan of reorganization pursuant to Title 11 of the Bankruptcy Code of the Loan Party that is the subject of the Loan Party Insolvency (such plan of reorganization being a “Loan Party Plan of Reorganization”), if any Affiliated Lender would, as a consequence thereof, receive treatment under such Loan Party Plan of Reorganization that, on a ratable basis, would be inferior to that of the Lenders (other than such Affiliated Lenders) holding the Term Loan as the affected Affiliated Lender (such Lenders being, “Non‑Restricted Persons”) and any such Loan Party Plan of Reorganization shall require the consent of such Affiliated Lender and (2) to the extent any Non‑Restricted Person would receive superior treatment as part of any Loan Party Plan of Reorganization, as compared to any Affiliated Lender, pursuant to any investment made, or other action taken, by such Non‑Restricted Person in accordance with such Loan Party Plan of Reorganization (but excluding the Term Loan), then such Affiliate Lender’s consent shall not be required, so long as such Affiliate Lender was afforded the opportunity to ratably participate in such investment or to take such action pursuant to the Loan Party Plan of Reorganization. Notwithstanding anything to the contrary contained herein, Section 12.4(a)(iv) shall supersede any Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant to an Auction or on a non-pro rata basis pursuant to open market or other purchases; provided that:
(i) no Default or Event of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this provisions in Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) with respect to all assignments to an Affiliated Lender pursuant to this Section 10.04(f), the assigning Lender and the Affiliated Lender shall execute and deliver 12.6 to the Administrative Agent and, in the case of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
contrary. (iv) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:
(A) Subject to clause (B) below, each Affiliated Lender, in connection with any (1) consent (or decision not to consent) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document, (2) other action on any matter related to any Loan Document or (3) direction to the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to any amendment, modification, waiver, consent or other action described in clause (i) or (ii) or (vii) of the first proviso of Section 10.02(b) or that adversely affects such Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall be deemed to have voted its interest as a Lender without discretion in such proportion as the allocation of voting with respect to such matter by Lenders of the same Class of Loans who are not Affiliated Lenders. Subject to clause (B) below, the Borrower and each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).
(B) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender shall have any right to (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof as a contribution to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documents.
Appears in 1 contract
Samples: Term Loan and Guarantee Agreement
Assignments to Affiliated Lenders. Notwithstanding anything Any Lender may, at any time, assign all or a portion of its rights and obligations with respect to the contrary contained herein, any Term Loans to an Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant through (x) Dutch Auctions open to an Auction all Lenders (or all Lenders of a particular Class) on a non-pro rata basis pursuant to or (y) open market or other purchases; provided that, in each case subject to the following limitations:
(i) no Default notwithstanding anything in Section 11.1 or Event the definition of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) with respect to all assignments to an Affiliated Lender pursuant to this Section 10.04(f), the assigning Lender and the Affiliated Lender shall execute and deliver Required Lenders” to the Administrative Agent andcontrary, in for purposes of determining whether the case of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
(iv) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:
(A) Subject to clause (B) below, each Affiliated Lender, in connection with any have (1) consent (or decision not to consent) consented to any amendment, modification, waiver, consent waiver or other action with respect to any of the terms modification of any Loan DocumentDocument (including such modifications pursuant to Section 11.1), (2) other action otherwise acted on any matter related to any Loan Document or Document, (3) direction to directed or required the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to any amendment, modification, waiver, consent or other action described in clause (i) or (ii4) or (vii) subject to Section 2.23, voted on any plan of reorganization pursuant to Title 11 of the first proviso United States Code, that in either case does not require the consent of Section 10.02(b) each Lender or that each affected Lender or does not adversely affects affect such Affiliated Lender disproportionately in any material respect as compared to other Lenders of Lenders, the same Class of Loans, shall Sponsors and any Non-Debt Fund Affiliate will be deemed to have voted its interest as a Lender without discretion in such the same proportion as the allocation of voting with respect to such matter by Lenders of the same Class of Loans who that are not Affiliated Lenders. Subject to clause (B) below, Lenders voting on such matter; and the Borrower Sponsors and each Affiliated Lender Non-Debt Fund Affiliate each hereby acknowledges, agrees and consents that if a case under if, for any reason, its vote to accept or reject any plan pursuant to Title 11 of the United States Code) is not deemed to have been so voted, then such vote will be (x) deemed not to be in good faith and (y) “designated” pursuant to Section 1126(e) of Title 11 of the United States Code such that the vote is commenced against not counted in determining whether the Borrower, the Borrower, applicable class has accepted or rejected such plan in accordance with respect to any plan Section 1126(c) of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders Title 11 of the same Class United States Code; provided that, for the avoidance of Loansdoubt, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower Debt Fund Affiliates shall not be counted. Subject subject to clause (B) belowsuch limitation and shall be entitled to vote as any other Lender; provided, each Affiliated Lender hereby irrevocably appoints further, that, notwithstanding the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-factforegoing or anything herein to the contrary, with full authority Debt Fund Affiliates may not in the place and stead aggregate account for more than 49.9% of such Affiliated Lender and the amounts set forth in the name calculation of such Affiliated Lender, from time Required Lenders and any amount in excess of 49.9% will be subject to time the limitations set forth in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).
(B) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender shall have any right to (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof as a contribution to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documents.;
Appears in 1 contract
Samples: Credit Agreement (CLARIVATE PLC)
Assignments to Affiliated Lenders. Notwithstanding anything Any Lender may, at any time, assign all or a portion of its rights and obligations with respect to the contrary contained herein, any Term Loans to an Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant to an Auction or (including Affiliated Investment Funds) on a non-pro rata basis pursuant to through open market or other purchases; provided that:
, in each case in accordance with the terms of this Agreement (i) no Default or Event of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”including Section 12.07), then (A) such Affiliated Lender must provide notice ofsubject, and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) with respect to all assignments to an Affiliated Lender pursuant to this Section 10.04(f), the assigning Lender and the Affiliated Lender shall execute and deliver to the Administrative Agent andextent applicable, to the restrictions set forth in the case definitions of an Auction, the Auction Manager, an Assignment "Eligible Assignee" and Assumption with respect to such assignment;
(iv) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver subject to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and following further governed by, the following provisionslimitations:
(A) Subject to clause [reserved];
(B) below, each Affiliated Lender, in connection with any for purposes of determining whether the Required Lenders have (1) consent (or decision not to consent) consented to any amendment, modification, waiver, consent waiver or other action with respect to any of the terms modification of any Loan DocumentDocument (including such modifications pursuant to Section 12.02), (2) other action otherwise acted on any matter related to any Loan Document or (3) direction to directed or required the Administrative Agent, the Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees thatexcept in the case of any Affiliated Lender Amendment, except the aggregate amount of Term Loans owed to the Affiliated Lenders or Term Loan Commitments of the Affiliated Lenders shall be disregarded (and treated for all purposes as if not outstanding) for purposes of calculating Required Lenders; provided, however, that if the Required Lenders (determined in accordance with respect the preceding provisions of this clause (B)) shall have consented to such amendment, waiver or modification or otherwise approved such action, then the Term Loans owed to the Affiliated Lenders or Term Loan Commitments of the Affiliated Lenders shall be deemed to have affirmatively consented to such amendment, waiver, modification or other action; provided further that any amendment, modificationwaiver or modification of any Loan Document that (1) increases any commitment of such Affiliated Lender, waiver, consent or other action described in clause (i2) or (ii) or (vii) extends the due date for any scheduled installment of the first proviso principal of Section 10.02(b) or that adversely affects any Loan held by such Affiliated Lender (including at maturity), (3) extends the due date for interest under the Loan Documents owed to such Affiliated Lender, (4) reduces any amount owing to such Affiliated Lender under any Loan Document or (5) results in any material respect a disproportionate adverse effect to an Affiliated Lender as compared to other Lenders (the foregoing being an "Affiliated Lender Amendment"), in each case, shall require the affirmative consent of each such Affiliated Lender adversely affected thereby;
(C) Restricted Affiliated Lenders shall not be entitled to receive (i) information provided solely to Lenders by the Agents or any Lender and shall not be permitted to attend or participate in meetings attended solely by Lenders and the Agents and their advisors, other than the right to receive Notices of Borrowing, notices of prepayments and other administrative notices in respect of its Term Loans or Term Loan Commitments required to be delivered to Lenders pursuant to Article II and financial statements delivered under Section 7.01 and (ii) advice of counsel to the Lenders or the Agents or challenge the attorney-client privilege afforded to such Persons; provided that Affiliated Investment Funds shall not be subject to such limitation;
(D) at the time any Affiliated Lender is making purchases of Term Loans pursuant to an open market purchase it shall execute and deliver an Assignment and Acceptance to the Agents;
(E) at the time of such open market purchase by a Restricted Affiliated Lender, no Default or Event of Default shall have occurred and be continuing;
(F) any Term Loans acquired by Sponsor or any Affiliated Lender may, with the consent of the same Class Borrower, be contributed to the Parent (whether through any of Loansits direct or indirect parent entities or otherwise) and exchanged for Equity Interests (not Disqualified Equity Interests) of the Parent, provided that any such Term Loans so contributed shall be deemed immediately cancelled, terminated and forgiven;
(G) the aggregate principal amount of all Term Loans which may be assigned through open market purchases shall not exceed (as calculated at the time of the consummation of any aforementioned assignments) in the case of Restricted Affiliated Lenders, 10% of the aggregate principal amount of the Term Loans then outstanding;
(H) Notwithstanding any other provision herein to have voted its interest as the contrary, in the event that a Loan Party is the subject of a proceeding of the type described in Section 9.01(f) or 9.01(g) (such proceeding, a "Loan Party Insolvency"), each Restricted Affiliated Lender without discretion shall grant to the Collateral Agent a power of attorney, giving the Collateral Agent the right to vote each Restricted Affiliated Lender's claims on all matters submitted to the Lenders for consent in respect of such Loan Party Insolvency, and the Collateral Agent shall vote such claims in the same proportion as the allocation majority (by holdings) of voting with respect Lenders (other than Restricted Affiliated Lenders) that voted on each matter submitted to such matter by Lenders for approval; provided that (1) the foregoing shall not permit the Collateral Agent to consent to, or refrain from, giving approval in respect of the same Class a plan of Loans who are not Affiliated Lenders. Subject reorganization pursuant to clause (B) below, the Borrower and each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Bankruptcy Code of the Loan Party that is commenced against the subject of the Loan Party Insolvency (such plan of reorganization being a "Loan Party Plan of Reorganization"), if any Restricted Affiliated Lender would, as a consequence thereof, receive treatment under such Loan Party Plan of Reorganization that, on a ratable basis, would be inferior to that of the Lenders (other than such Restricted Affiliated Lenders) holding the same tranche of Term Loans as the affected Restricted Affiliated Lender (such Lenders being, "Non-Restricted Persons") and any such Loan Party Plan of Reorganization shall require the consent of such Restricted Affiliated Lender and (2) to the extent any Non-Restricted Person would receive superior treatment as part of any Loan Party Plan of Reorganization, as compared to any Restricted Affiliated Lender, pursuant to any investment made, or other action taken, by such Non-Restricted Person in accordance with such Loan Party Plan of Reorganization (but excluding the Term Loan), then such Restricted Affiliated Lender's consent shall not be required, so long as such Restricted Affiliated Lender was afforded the opportunity to ratably participate in such investment or to take such action pursuant to the Loan Party Plan of Reorganization;
(I) no assignment of Term Loans to an Affiliated Lender may be purchased with the proceeds of any Revolving Loan;
(J) none of the Borrower, the BorrowerParent, any Subsidiaries of the Parent or any Affiliated Lender shall be required to make any representation that it is not in possession of material non-public information with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders the Parent, Subsidiaries of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower Parent or any Affiliate of the Borrower shall not be countedtheir respective Affiliates. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).
(B) Notwithstanding anything to the contrary herein, Section 12.07(a)(iv) shall supersede any provisions in this Agreement, no Affiliated Lender shall have any right to (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except Section 4.03 to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documentscontrary.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof as a contribution to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documents.
Appears in 1 contract
Assignments to Affiliated Lenders. Notwithstanding anything Any Lender may, at any time, assign all or a portion of its rights and obligation with respect to the contrary contained herein, any Loans under this Agreement to an Affiliated Lender may purchase (including Affiliated Investment Funds) pursuant to this Section 13.6 through (x) Dutch Auctions open to all Lenders of a particular Class of Term Loans hereunder from any Lender pursuant subject to an such Dutch Auction or on a non-pro rata basis pursuant to or (y) through open market or other purchases; provided that, in each case subject to the following additional conditions and limitations:
(i) no Default Affiliated Lenders shall not receive information provided solely to Lenders and the Administrative Agent and their respective advisors by the Administrative Agent or Event any Lender and shall not be permitted to attend or participate in meetings attended solely by Lenders and the Administrative Agent and their advisors, other than the right to receive notices of Default has occurred Borrowings, notices of prepayments and other administrative notices in respect of its Loans or is continuing or would result therefromCommitments required to be delivered to Lenders pursuant to Article II; provided that Affiliated Investment Funds shall not be subject to such limitation;
(ii) if such sale, assignment notwithstanding anything in Section 13.1 or transfer is pursuant to one or more Dutch auctions (each, an the definition of “Auction”), then (A) such Affiliated Lender must provide notice of, and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) with respect to all assignments to an Affiliated Lender pursuant to this Section 10.04(f), the assigning Lender and the Affiliated Lender shall execute and deliver Required Lenders” to the Administrative Agent andcontrary, in for purposes of determining whether the case of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
(iv) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:
(A) Subject to clause (B) below, each Affiliated Lender, in connection with any have (1) consent (or decision not to consent) consented to any amendment, modification, waiver, consent waiver or other action with respect to any of the terms modification of any Loan DocumentCredit Document (including such modifications pursuant to Section 13.1), (2) other action otherwise acted on any matter related to any Loan Document or Credit Document, (3) direction to directed or required the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Credit Document, agrees that, except with respect to any amendment, modification, waiver, consent or other action described in clause (i) or (ii4) or (vii) voted on any plan of reorganization pursuant to Title 11 of the first proviso United States Code, that in either case does not require the consent of Section 10.02(b) each Lender or that each affected Lender or does not adversely affects affect such Affiliated Lender disproportionately in any material respect as compared to other Lenders, Affiliated Lenders of the same Class of Loans, shall will be deemed to have voted its interest as a Lender without discretion in such the same proportion as the allocation of voting with respect to such matter by Lenders of the same Class of Loans who that are not Affiliated Lenders. Subject to clause (B) below, the Borrower Lenders voting on such matter; and each Affiliated Lender hereby acknowledges, agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).
(B) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender shall have any right to (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof as a contribution to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documents.and
Appears in 1 contract
Assignments to Affiliated Lenders. Notwithstanding anything Any Lender may, at any time, assign all or a portion of its rights and obligations with respect to the contrary contained herein, any Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant to an Auction or on a non-pro rata basis pursuant to open market or other purchases; provided that:
(i) no Default or Event of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) with respect to all assignments Term Loans to an Affiliated Lender pursuant to this Section 10.04(f), the assigning Lender (including Affiliated Investment Funds) and the Affiliated Lender shall execute and deliver to the Administrative Agent and, in the case of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
(ivii) no Term Revolving Loans and/or Revolving Loan may be assigned Commitments to an Affiliated Lender pursuant Investment Fund, in each case through (x) Dutch Auctions open to all Lenders on a pro rata basis or (y) open market purchases, in each case in accordance with the terms of this Agreement (including Section 10.04(f13.4), if, at subject to the time of such assignment, after giving effect to such assignment, Affiliated Lenders restrictions set forth in the aggregate would own Term Loans with a principal amount definitions of “Eligible Assignee” and “Dutch Auction,” in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lendereach case, if it shall be a Lender, shall deliver and subject to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and following further governed by, the following provisionslimitations:
(A) Subject in connection with each Purchase Notice, each Auction Purchase and each open market purchase, each Affiliated Lender represents and warrants, as of the date of each Purchase Notice and the effective date of any Auction Purchase or open market purchase, to clause the Administrative Agent and each Lender that such Affiliated Lender is not in possession of any information with respect to the Loan Parties, their Subsidiaries and Affiliates of the foregoing and their respective securities or any of the Obligations that (x) has not been disclosed by or on behalf of the Loan Parties either (1) publicly, (2) to Lenders generally or (3) otherwise been posted to that portion of the Intralinks site for the Loans that has been designated for “private-side” Lenders and (y) in the Affiliated Lender’s good faith determination would reasonably be expected to have a material effect on the market price of the Loans or otherwise be material with respect to the Loan Parties for purposes of United States federal and state securities laws;
(B) belownotwithstanding anything in Section 13.12 or the definition of “Required Lenders” to the contrary, each Affiliated Lender, in connection with any (i) for purposes of determining whether the Lenders have (1) consent (or decision not to consent) consented to any amendment, modification, waiver, consent waiver or other action with respect to any of the terms modification of any Loan DocumentDocument (including such modifications pursuant to Section 13.12), (2) other action otherwise acted on any matter related to any Loan Document or Document, (3) direction to directed or required the Administrative Agent, the Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to any amendment, modification, waiver, consent or other action described in clause (i) or (ii4) or (vii) subject to Section 2.14, voted on any plan of reorganization pursuant to Title 11 of the first proviso United States Code, that in either case does not require the consent of Section 10.02(b) each Lender or that each affected Lender or does not adversely affects affect such Restricted Affiliated Lender disproportionately in any material respect as compared to other Lenders, Restricted Affiliated Lenders of the same Class of Loans, shall will be deemed to have voted its interest as a Lender without discretion in such the same proportion as the allocation of Lenders that are not Restricted Affiliated Lenders voting with respect to on such matter by Lenders and (ii) Affiliated Investment Funds may not in the aggregate account for more than 49.9% of the same Class amounts set forth in the calculation of Loans who are not Affiliated Lenders. Subject Required Lenders and any amount in excess of 49.9% will be subject to the limitations set forth in clause (BB)(i);
(C) below, the Borrower and each Restricted Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject receive (i) information provided solely to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).
(B) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender shall have any right to (1) attend (including Lenders by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender and shall not be permitted to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (attend or participate inin meetings attended solely by Lenders and the Administrative Agent and their advisors, other than as a passive participant the right to receive notices of Borrowings, notices of prepayments and other administrative notices in or recipient respect of its pro rata benefits ofLoans or Commitments required to be delivered to Lenders pursuant to Section 2 and (ii) advice of counsel to the Lenders or the Administrative Agent or challenge the attorney-client privilege afforded to such Persons; provided that Affiliated Investment Funds shall not be subject to such limitation;
(D) at the time any Affiliated Lender is making purchases of Loans pursuant to a Dutch Auction or an open market purchase it shall enter into an Assignment and Assumption;
(E) at the time of such Purchase Notice and Auction Purchase or open market purchase, no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(F) any claim, in its capacity as a Lender, against Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.
(C) An Term Loans acquired by an Affiliated Lender may contribute may, with the Loans purchased pursuant consent of the applicable Borrower, be contributed to this Section 10.04(f) to Holdings or the applicable Borrower (whether through any of its direct or indirect parent thereof as a contribution entities or otherwise) and exchanged for Indebtedness or Capital Stock of such parent entity or applicable Borrower that are otherwise permitted to be issued by such entity at such time, provided that any such Term Loans so contributed shall be immediately Cancelled; and
(G) the aggregate principal amount of all Term Loans which may be purchased by Restricted Affiliated Lenders through Dutch Auctions or assigned to the equity Affiliated Lenders through open market purchases shall in no event exceed, as calculated at the time of Holdings the consummation of any aforementioned Purchases or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parentassignments, 20% of the aggregate principal amount of the Term Loans then outstanding. Any Loans contributed to Holdings pursuant Notwithstanding anything to the foregoing sentence contrary herein, Section 13.4(a)(iv) shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, supersede any provisions in Section 2.8 to the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documentscontrary.
Appears in 1 contract
Assignments to Affiliated Lenders. Notwithstanding anything Subject to clauses (A), (B) and (C) below, any Lender may assign all or a portion of the Term Loan (subject to the contrary limitations contained hereinin Sections 10.06(b)(i)) to Affiliated Lenders (excluding Holdings and its Subsidiaries), without the consent of any Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant Person but subject to an Auction or on a non-pro rata basis pursuant to open market or other purchasesacknowledgment by the Administrative Agent; provided that:
that (i) no Default or Event of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) with respect to all assignments to an Affiliated Lender pursuant to this Section 10.04(f), the assigning Lender and the Affiliated Lender assignee shall execute and deliver to the Administrative Agent and, in the case of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
Assumption, (ivii) at no time may the aggregate principal amount of the Term Loan may be assigned held by the Affiliated Lenders (other than Holdings and its Subsidiaries) exceed 25% of the aggregate principal amount of the Term Loans and incremental term loans then outstanding, and (iii) after giving effect to an assignment the number of Affiliated Lender pursuant to this Section 10.04(f), if, Lenders holding the Term Loans and incremental term loans shall not constitute 50% or more of the aggregate number of Lenders holding a portion of the Term Loans and incremental term loans at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:.
(A) Subject Notwithstanding anything to the contrary in this Section 10.06, but subject to the rights contained in clause (C) below, the Affiliated Lenders shall not have any right to (1) attend (including by telephone or electronic means) any meeting or discussions (or portion thereof) among the Administrative Agent and any Lender to which representatives of the Borrowers or the Guarantors are not invited, or (2) receive any information or material prepared by the Administrative Agent or any Lender or any communication by or among the Administrative Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrowers or the Guarantors or their representatives.
(B) belowNotwithstanding anything to the contrary in this Section 10.06 or the definition of “Required Lenders”, each Affiliated Lender, in connection with any for purposes of determining whether the Required Lenders have (1) consent consented (or decision not to consentconsented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan DocumentDocument or any departure by any Borrower or any Guarantor therefrom, (2) other action otherwise acted on any matter related to any Loan Document Document, or (3) direction to directed or required the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees thatall or any portion of the Term Loan held by the Affiliated Lenders shall be deemed, except to the extent not adversely affecting the Affiliated Lenders (other than Holdings and its Subsidiaries) disproportionately as compared to other Lenders, to be not outstanding; provided that no amendment, modification, waiver, consent or other action with respect to any Loan Document shall deprive the Affiliated Lenders of its pro rata share of any payments to which the Affiliated Lenders is entitled under the Loan Documents or any vote which affects the Affiliated Lenders disproportionately without the Affiliated Lenders providing its consent; (x) solely with respect to any amendment, modification, waiver, consent or other action described in clause (i) which fees are paid or (ii) or (vii) of the first proviso of Section 10.02(b) or that adversely affects otherwise received by consenting Lenders and solely in connection with determining to which Lenders such Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, fees shall be deemed paid, the Affiliated Lenders shall be treated as having consented thereto, (y) the Affiliated Lenders agree to have voted execute and deliver to the Administrative Agent any instrument reasonably requested by the Administrative Agent to evidence the voting of its interest as a Lender without discretion in such proportion as accordance with the allocation provisions of voting with respect to such matter by Lenders this Section 10.06(g); provided that if any of the same Class of Loans who are not Affiliated Lenders. Subject Lenders fail to clause (B) below, the Borrower and each Affiliated Lender hereby agrees that if a case under Title 11 promptly execute such instrument such failure shall in no way prejudice any of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek Administrative Agent’s rights under this paragraph and (and each Affiliated Lender shall consentz) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent is hereby appointed (such appointment being coupled with an interest) by the Affiliated Lenders as each such Affiliated LenderPerson’s attorney-in-attorney in fact, with full authority in the place and stead of such Affiliated Lender Person and in the name of such Affiliated LenderPerson, from time to time in the Administrative Agent’s reasonable discretion to take any action and to execute any and instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause Section 10.06(g) and (Aii) Affiliated Lenders in their capacities as a Lender shall retain the right to consent to an extension of the maturity date of their Term Loans, reduction in the principal amount of their Term Loans, reduction in the interest rate thereof or postponement of the scheduled due date therefor). Affiliated Lenders may, with the consent of Borrower Agent and pursuant to documentation reasonably satisfactory to the Administrative Agent, contribute the Term Loans held by them as an equity contribution to the Borrowers (whether through any of its direct or indirect parent companies or otherwise) in exchange for debt or equity securities of the Borrowers or such parent company that are otherwise permitted to be issued by such Person at such time. If any Borrower or any Guarantor is the subject of any proceeding under any Debtor Relief Laws no Affiliated Lender shall (i) vote in opposition to a plan of reorganization of such Borrower or Guarantor that has been approved by all Lenders (exclusive of all Affiliated Lenders) unless such plan of reorganization affects such Affiliated Lender in its capacity as a Lender in a disproportionately adverse manner than its effect on other Lenders or (ii) vote in favor of any plan of reorganization of such Borrower or Guarantor that has not been approved by Lenders (exclusive of all Affiliated Lenders) holding a majority of the outstanding principal amount of the Loans (exclusive of the amount held by all Affiliated Lenders).
(BC) Notwithstanding anything to the contrary in this Agreement, no The Affiliated Lender shall have any right to Lenders (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of Holdings and its pro rata benefits of) any claimSubsidiaries), in its capacity as a LenderLender of a portion of the Term Loan, against Administrative in its sole and absolute discretion and with Borrower Agent’s consent, may, but is not required to, make one or more capital contributions or assignments of the Collateral Agent or any other Lender portion of the Term Loan that it acquires in accordance with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) 10.06 to Holdings or any direct or indirect parent thereof as a contribution to the solely in exchange for (x) equity interests of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stocky) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence extent permitted to be incurred under this Agreement, unsecured Subordinated Indebtedness issued by Holdings to Affiliated Lenders, as applicable, in each case, upon no less than 3 Business Days’ prior written notice to the Administrative Agent. Immediately upon the acquisition by Holdings of such portion of the Term Loan, it shall immediately be deemed canceled and no longer outstanding (and may not be resold by transfer such Affiliated Lender, by Holdings, such parent, portion to the Borrowers. Immediately upon any Borrower or any of its a Borrower’s Subsidiaries’ acquisition of any portion of the Term Loan, (x) such portion of the Term Loan and all rights and obligations as a Lender related thereto shall for all purposes of (including under this Agreement and all Agreement, the other Loan DocumentsDocuments and otherwise) be deemed to be irrevocably prepaid, terminated, extinguished, cancelled and of no further force and effect and such Borrower or such Borrower’s Subsidiary shall neither obtain nor have any rights as a Lender hereunder or under the other Loan Documents by virtue of such capital contribution or assignment and (y) Borrowers shall deliver to the Administrative Agent a written acknowledgement and agreement executed by a Responsible Officer and in form and substance reasonably acceptable to the Administrative Agent acknowledging the irrevocable prepayment, termination, extinguishment and cancellation of such portion of the Term Loan and confirming that such Borrowers have no rights as a Lender under this Agreement, the other Loan Documents or otherwise. The parties hereto agree that any prepayment, termination, extinguishment and/or cancellation of any Loans as contemplated by this Section 10.06 shall be disregarded for purposes of calculating each of Adjusted Consolidated EBITDA and Excess Cash Flow for any applicable period of calculation.
(D) No Affiliated Lenders acquiring Loans through an assignment shall be required to make any representation that it is not in possession of material non-public information with respect to Holdings or its Subsidiaries or their respective securities.
Appears in 1 contract
Assignments to Affiliated Lenders. Notwithstanding anything to the contrary contained hereinAny Lender may, at any Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant to an Auction time, assign all or on a non-pro rata basis pursuant to open market or other purchases; provided that:
(i) no Default or Event portion of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, its rights and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) obligations with respect to all assignments Term Loans to an Affiliated Lender pursuant (including Affiliated Investment Funds) through (1) Dutch Auctions open to all Lenders of one or more Classes on a pro rata basis, subject to the limitations set forth in the definition of “Dutch Auction” or (2) open market purchases, in each case in accordance with the terms of this Agreement (including this Section 10.04(f13.4), subject to the assigning Lender restrictions set forth in the definitions of “Eligible Assignee” and the Affiliated Lender shall execute and deliver to the Administrative Agent and, in the case of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
(iv) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and following further governed by, the following provisionslimitations:
(A) Subject notwithstanding anything in Section 13.12 or the definition of “Required Lenders” to clause the contrary, (Bx) below, each Affiliated Lender, in connection with any for purposes of determining whether the Lenders have (1) consent (or decision not to consent) consented to any amendment, modification, waiver, consent waiver or other action with respect to any of the terms modification of any Loan DocumentDocument (including such modifications pursuant to Section 13.12), (2) other action otherwise acted on any matter related to any Loan Document or Document, (3) direction to directed or required the Administrative Agent, the Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to any amendment, modification, waiver, consent or other action described in clause (i) or (ii4) or (vii) subject to Section 2.14, voted on any plan of reorganization pursuant to Title 11 of the first proviso United States Code, that in either case does not require the consent of Section 10.02(b) each Lender or that each affected Lender or does not adversely affects affect such Restricted Affiliated Lender disproportionately in its capacity as a Lender in any material respect as compared to other Lenders, Term Loans held by Restricted Affiliated Lenders will be disregarded and (y) Affiliated Investment Funds may not in the aggregate account for more than 49.9% of the same Class of Loans, shall be deemed to have voted its interest as a Lender without discretion in such proportion as the allocation of voting with respect to such matter by Lenders of the same Class of Loans who are not Affiliated Lenders. Subject to clause (B) below, the Borrower and each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority amounts set forth in the place and stead calculation of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).Required Lenders;
(B) Notwithstanding anything Restricted Affiliated Lenders shall not receive (x) information provided solely to the contrary in this Agreement, no Affiliated Lender shall have any right to (1) attend (including Lenders by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender and shall not be permitted to which representatives attend or participate in meetings or conference calls attended solely by Lenders and the Administrative Agent and their advisors, other than the right to receive notices of Borrowings, notices of prepayments and other administrative notices in respect of its Loans or Commitments required to be delivered to Lenders pursuant to Section 2 and (y) advice of counsel to the Borrower are not then present, (2) receive any information Lenders or material prepared by the Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, challenge the Collateral Agent and/or one or more Lenders, except attorney-client privilege afforded to the extent such information or materials have been made available to the Borrower or its representatives, or (3) Persons and shall not make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against the Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.
(C) An at the time any Affiliated Lender may contribute the is making purchases of Loans purchased pursuant to this Section 10.04(fa Dutch Auction or an open market purchase it shall enter into an Assignment and Assumption and identify itself as an Affiliated Lender;
(D) any Term Loans acquired by an Affiliated Lender may, with the consent of the Borrower, be contributed to Holdings or the Borrower (whether through any of its direct or indirect parent thereof as a contribution entities or otherwise) and exchanged for Indebtedness or Capital Stock of; provided that any such Term Loans so contributed to the equity Borrower shall be immediately Cancelled;
(E) the aggregate principal amount of Holdings all Term Loans which may be purchased by Restricted Affiliated Lenders through Dutch Auctions or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant assigned to the foregoing sentence Restricted Affiliated Lenders through open market purchases shall immediately in no event exceed, as calculated at the time of the consummation of any aforementioned Purchases or assignments, 25.00% of the aggregate principal amount of the Term Loans then outstanding; and
(F) no Default or Event of Default shall have occurred and be deemed canceled and no longer outstanding (and may not be resold continuing or would otherwise result therefrom. In connection with any assignment to or by such an Affiliated Lender, by Holdingssuch Affiliated Lender shall identify itself in the applicable Assignment and Assumption as a Restricted Affiliated Lender or an Affiliated Investment Fund, such parentas applicable. Notwithstanding anything to the contrary herein, this Section 13.4(a)(iv) shall supersede any provisions in Sections 2.8 and 13.6 to the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documentscontrary.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (LEGALZOOM.COM, Inc.)
Assignments to Affiliated Lenders. Notwithstanding anything Any Lender may, at any time, assign all or a portion of its rights and obligations with respect to the contrary contained herein, any Term Loans to an Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant (including Affiliated Investment Funds) through (x) Dutch Auctions open to an Auction or all Lenders on a non-pro rata basis pursuant to or (y) open market or other purchases; provided that, in each case in accordance with the terms of this Agreement (including Section 12.04), subject, to the extent applicable, to the restrictions set forth in the definitions of “Eligible Assignee” and “Dutch Auction,” in each case, and subject to the following further limitations:
(iA) no Default or Event of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant required to such procedures make a representation that, as of the Auction Manager may establishdate of any assignment, consistent with this Section 10.04(f) and otherwise reasonably acceptable it is not in possession of information that has not been disclosed to such Affiliated Lenderthe Administrative Agent, the Auction Manager and Lenders and that may be material to a Lender’s decision to participate in such assignment or purchase; and each Lender participating in any assignment to Affiliated Lender acknowledges and agrees that in connection with such assignment, (1) the Affiliated Lenders then may have, and later may come into possession of material non-public information, (2) such Lender has independently and, without reliance on the Affiliated Lenders or any of their Subsidiaries, the Borrower or any of their Subsidiaries or the Administrative Agent, the Auction Manager or any of their respective Related Parties, made its own analysis and determination to participate in such assignment notwithstanding such Lender’s lack of knowledge of the material non-public information, (3) none of the Affiliated Lenders or any of their Subsidiaries or Holdings, the Borrower or any of their Subsidiaries shall be required to make any representation that it is not in possession of material non-public information, (4) none of the Affiliated Lenders or any of their Subsidiaries, Holdings, the Borrower or any of their Subsidiaries or the Administrative Agent, the Auction Manager or any of their respective Related Parties shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent permitted by law, any claims such Lender may have against the Affiliated Lenders or any of their Subsidiaries, Holdings, the Borrower or any of its Subsidiaries or the Administrative Agent, the Auction Manager or any of their respective Related Parties, under applicable laws or otherwise, with respect to the nondisclosure of the material non-public information and (5) that the material non-public information may not be available to the Administrative Agent or the other Lenders;
(iiiB) with respect to all assignments to an Restricted Affiliated Lender pursuant to this Lenders only, notwithstanding anything in Section 10.04(f), 12.12 or the assigning Lender and the Affiliated Lender shall execute and deliver definition of “Required Lenders” to the Administrative Agent andcontrary, in for purposes of determining whether the case of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
(iv) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated requisite Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:
(A) Subject to clause (B) below, each Affiliated Lender, in connection with any have (1) consent (or decision not to consent) consented to any amendment, modification, waiver, consent waiver or other action with respect to any of the terms modification of any Loan DocumentDocument (including such modifications pursuant to Section 12.12), (2) other action otherwise acted on any matter related to any Loan Document or (3) direction to directed or required the Administrative Agent, the Auction Manager, the Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees thatexcept in the case of any Restricted Affiliated Lender Amendment, except with respect the aggregate amount of Term Loans owed to the Restricted Affiliated Lenders or Term Loan Commitments of the Restricted Affiliated Lenders shall be disregarded for purposes of calculating Required Lenders; provided, however, if the Lenders (other than the Restricted Affiliated Lenders) shall have consented to such amendment, waiver or modification or otherwise approved such action, then the Restricted Affiliated Lender shall be deemed to have affirmatively consented to such amendment, waiver, modification or other action; provided further, any amendment, modificationwaiver or modification of any Loan Document that (v) reduces the principal amount of any Term Loans or the interest rate. fees or premium, waiverif any, applicable thereto or otherwise reduces the Obligations, (w) increases the Term Loan Commitments of each Lender, (x) extends the dates on which any interest or principal payment would otherwise be due to a Lender, (y) requires the consent or other action described in clause (i) or (ii) or (vii) of each Lender directly and adversely affected thereby pursuant to the first proviso of Section 10.02(b12.12(a) or that adversely affects such (z) results in an adverse effect to a Restricted Affiliated Lender in any material respect as compared to other Lenders (each of the same Class foregoing clauses (x), (y) and (z) being a “Restricted Affiliated Lender Amendment”), in each case shall require the affirmative consent of Loanseach Restricted Affiliated Lender affected thereby;
(C) Restricted Affiliated Lenders shall not be entitled to receive (i) information provided solely to Lenders by the Administrative Agent, the Auction Manager or any Lender and shall not be permitted to attend or participate in meetings attended solely by Lenders, the Auction Manager and the Administrative Agent and their advisors, other than the right to receive Notices of Borrowings, notices of prepayments and other administrative notices in respect of its Term Loans or Term Loan Commitments required to be delivered to Lenders pursuant to Article II and (ii) advice of counsel to the Lenders, the Auction Manager or the Administrative Agent or challenge the attorney-client privilege afforded to such Persons; provided that Affiliated Investment Funds shall not be subject to such limitation;
(D) at the time any Affiliated Lender is making purchases of Term Loans pursuant to a Dutch Auction or an open market purchase it shall enter into an Assignment and Assumption;
(E) any Term Loans acquired by an Affiliated Lender may, with the consent of the Borrower, be contributed to the Borrower (whether through any of its direct or indirect parent entities or otherwise) and exchanged for Indebtedness or Capital Stock of Holdings or any Parent Company or the Borrower that are otherwise permitted to be issued by such entity at such time, provided that any such Term Loans so contributed shall be deemed immediately Cancelled;
(F) the aggregate principal amount of all Term Loans which may be purchased through Dutch Auctions or assigned through open market purchases shall not exceed (as calculated at the time of the consummation of any aforementioned Purchases or assignments) in the case of Restricted Affiliated Lenders and together with all other Restricted Affiliated Lenders, 25% of the aggregate principal amount of the Term Loans then outstanding and Term Loan Commitments;
(G) notwithstanding any other provision herein to have voted its interest as the contrary, in the event that a Loan Party is the subject of a proceeding of the type described in Section 10.01(f) (such proceeding, a “Loan Party Insolvency”), each Restricted Affiliated Lender without discretion shall grant to the Administrative Agent a power of attorney, giving the Administrative Agent the right to vote each Restricted Affiliated Lender’s claims on all matters submitted to the Lenders for consent in respect of such Loan Party Insolvency, and the Administrative Agent shall approve such claims in the same proportion as the allocation majority of voting with respect Lenders (other than Restricted Affiliated Lenders) that voted on each matter submitted to such matter by Lenders for approval; provided that (1) the foregoing shall not permit the Administrative Agent to consent to, or refrain from, giving approval in respect of the same Class a plan of Loans who are not Affiliated Lenders. Subject reorganization pursuant to clause (B) below, the Borrower and each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Bankruptcy Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class Loan Party that is the subject of Loans, shall seek the Loan Party Insolvency (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization being a “Loan Party Plan of Reorganization”), if any Restricted Affiliated Lender would, as a consequence thereof, receive treatment under such Loan Party Plan of Reorganization that, on a ratable basis, would be inferior to that of the Borrower Lenders (other than such Restricted Affiliated Lenders) holding the same Tranche of Term Loans as the affected Restricted Affiliated Lender (such Lenders being, “Non‑Restricted Persons”) and any such Loan Party Plan of Reorganization shall require the consent of such Restricted Affiliated Lender and (2) to the extent any Non‑Restricted Person would receive superior treatment as part of any Loan Party Plan of Reorganization, as compared to any Restricted Affiliated Lender, pursuant to any investment made, or any Affiliate other action taken, by such Non‑Restricted Person in accordance with such Loan Party Plan of Reorganization (but excluding the Borrower Term Facility), then such Restricted Affiliated Lender’s consent shall not be counted. Subject to clause (B) belowrequired, each so long as such Restricted Affiliated Lender hereby irrevocably appoints was afforded the Administrative Agent opportunity to ratably participate in such investment or to take such action pursuant to the Loan Party Plan of Reorganization;
(such appointment being coupled with H) no assignment of Term Loans to an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in may be purchased with the name proceeds of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).Revolving Loan; and
(BI) none of the Borrower, Holdings, any Subsidiaries of Holdings or any Affiliated Lender shall be required to make any representation that it is not in possession of material non-public information with respect to Holdings, Subsidiaries of Holdings or any of their respective Affiliates. Notwithstanding anything to the contrary herein, this Section 12.04(a)(iv) shall supersede any provisions in this Agreement, no Affiliated Lender shall have any right to (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except Section 12.06 to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documentscontrary.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof as a contribution to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documents.
Appears in 1 contract
Samples: Credit and Guarantee Agreement (Infrastructure & Energy Alternatives, Inc.)
Assignments to Affiliated Lenders. (A) Notwithstanding anything contained herein to the contrary contained hereincontrary, any Affiliated Lender assignments may purchase be made of the Term Loans (including any Incremental Term Loan established hereunder from any Lender pursuant after the Closing Date) to an Auction or on a non-pro rata basis pursuant to open market or other purchasesAffiliated Lender; provided that:
(i1) no Default all such assignments shall be subject to the consent of the Administrative Agent which consent shall not be unreasonably withheld or Event of Default has occurred or is continuing or would result therefromdelayed;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, and the option to participate in, the Auction to all Lenders and (B2) the Auction Administrative Agent shall be conducted pursuant to have received a fully executed Assignment and Assumption Agreement, with such procedures modifications as the Auction Manager Administrative Agent may establishreasonably require (and which may include, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lenderamong other things, the Auction Manager and the Administrative Agent;
(iii) with respect to all assignments to an Affiliated Lender pursuant to this Section 10.04(f), the assigning Lender and confirmation that the Affiliated Lender shall execute is an “accredited investor” as referenced and deliver to defined in Regulation D under the Administrative Agent and, Securities Act of 1933 and that it is making the purchase for its own account in the case ordinary course and without a view to distribution within the meaning of an Auction, the Auction Manager, an Assignment Securities Act of 1933 and Assumption with respect to such assignment;the Securities Exchange Act of 1934 or other securities laws); and
(iv3) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to any such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(vincluding any Incremental Term Loan established hereunder after the Closing Date) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) held by all Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:
shall not exceed ten percent (A) Subject to clause (B) below, each Affiliated Lender, in connection with any (1) consent (or decision not to consent) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document, (2) other action on any matter related to any Loan Document or (3) direction to the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to any amendment, modification, waiver, consent or other action described in clause (i) or (ii) or (vii10%) of the first proviso aggregate principal amount of Section 10.02(ball Term Loans (including any Incremental Term Loan established hereunder after the Closing Date) or that adversely affects such Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall be deemed to have voted its interest as a Lender without discretion in such proportion as the allocation of voting with respect to such matter by Lenders of the same Class of Loans who are not Affiliated Lenders. Subject to clause (B) below, the Borrower and each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A)then outstanding.
(B) Notwithstanding anything contained herein to the contrary in this Agreementcontrary, no Affiliated Lender shall have any right to (1i) participate in any matter requiring a vote of the Term Loan Lenders, and the Term Loans held by the Affiliated Lenders shall be deemed to have been voted in same proportion as the allocation of voting with respect such matter by Term Loan Lenders who are not Affiliated Lenders so long as such Affiliated Lender and its Term Loans are treated in connection with the exercise of such right or taking of such action on the same or better terms as the other Term Loan Lenders, (ii) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower Loan Parties are not then presentinvited, (2iii) receive any information or material prepared by the Administrative Agent, the Collateral Agent or any Lender or any communication by or among the Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower Loan Parties or its their representatives, or (3iv) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against the Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Administrative Agent, Collateral Agent or any other such Lender under the Loan Documents.
(C) An Each Affiliated Lender, solely in its capacity as a Term Loan Lender, hereby agrees, and each Assignment and Assumption Agreement with an Affiliated Lender may contribute shall provide a confirmation that, if any Loan Party shall be subject to any voluntary or involuntary proceeding commended under any Debtor Relief Laws (“Bankruptcy Proceedings”), (i) such Affiliated Lender shall not take any step or action in such Bankruptcy Proceeding to object to, impede or delay the exercise of any right or the taking of any action by the Administrative Agent (or the taking of any action by a third party that is supported by the Administrative Agent) in relation to such Affiliated Lender’s claim with respect to its Loans (a “Claim”) (including, without limitation, objecting to any debtor in possession financing, use of cash collateral, grant of adequate protection, sale or disposition, compromise or plan of reorganization) so long as such Affiliated Lender is treated in connection with such exercise or action on the same or better terms as the other Term Loan Lenders and (ii) with respect to any matter requiring the vote of the Term Loan Lenders during the pendency of a Bankruptcy Proceeding (including, without limitation, voting on any plan of reorganization), the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof as a contribution to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold held by such Affiliated Lender (and any Claim with respect thereto) shall be deemed to be voted in the same proportion as the allocation of voting with respect to such matter by Lenders who are not Affiliated Lenders so long as such Affiliated Lender is treated in connection with the exercise of such right or taking of such action on the same or better terms as the other Term Loan Lenders. For the avoidance of doubt, the Lenders and each Affiliated Lender agree and acknowledge that the provisions set forth in clauses (i) and (ii) of this Section 11.06(b)(vii), and the related provisions set forth in the Assignment and Assumption Agreement for each Affiliated Lender, shall be enforceable as if such provisions constituted a “subordination agreement” as such term is contemplated by, and utilized in, Section 510(a) of the Bankruptcy Code (or comparable provision of any other Debtor Relief Law), and, as such, would be enforceable for all purposes in any case where a Loan Party has filed for protection under any Debtor Relief Law applicable to such Loan Party. Subject to acceptance and recording thereof by Holdingsthe Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such parentLender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or any transfer by a Lender of its Subsidiaries) rights or obligations under this Agreement that does not comply with this subsection shall be treated for all purposes of this Agreement as a sale by such Lender of a participation in such rights and all other Loan Documentsobligations in accordance with subsection (d) of this Section.
Appears in 1 contract
Assignments to Affiliated Lenders. (i) Notwithstanding anything else to the contrary contained hereinin this Agreement, any Lender may assign all or a portion of its Term Loans to any Affiliated Lender may purchase Term Loans hereunder from any Lender pursuant to an Auction or on a non-pro rata basis pursuant to open market or other purchasesin accordance with Section 11.2(b), Section 11.23 and this Section 11.2(g); provided that:
(i) no Default or Event of Default has occurred or is continuing or would result therefrom;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) with respect to all assignments to an Affiliated Lender pursuant to this Section 10.04(f), the assigning Lender and the Affiliated Lender purchasing such Lender’s Term Loans, as applicable, shall execute and deliver to the Administrative Agent and, an assignment agreement substantially in the case form of Exhibit L hereto (an “Affiliated Lender Assignment”) in lieu of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignmentAssignment;
(ivB) for the avoidance of doubt (but without limitation of the provisions of Section 2.19 permitting Non-Debt Fund Affiliates to provide additional Revolving Credit Commitments in accordance therewith), Lenders shall not be permitted to assign Revolving Credit Commitments or Revolving Loans to any Non-Debt Fund Affiliate or Purchasing Borrower Party;
(C) any Term Loans assigned to any Purchasing Borrower Party shall be automatically and permanently cancelled upon the effectiveness of such assignment and will thereafter no longer be outstanding for any purpose hereunder;
(D) no Purchasing Borrower Party may use the proceeds from Revolving Credit Loans or Swing Loans to purchase any Term Loan Loans and (ii) Term Loans may only be purchased by a Purchaser Borrowing Party if, after giving effect to any such purchase, there shall be no Revolving Credit Outstandings other than undrawn amounts of Letters of Credit;
(E) no Loans may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), 11.2(g) if, at the time of such assignment, immediately after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstandingshall collectively constitute more than three (3) Lenders;
(vF) such Affiliated Lender, if it shall no Loans may be assigned to a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered Non-Debt Fund Affiliate or Purchasing Borrower Party pursuant to this AgreementSection 11.2(g) if, immediately after giving effect to such assignment (and any automatic cancellation of any Loans purchased in such assignment), the Affiliated Lender Condition shall not be satisfied; and
(viG) Loans held by Affiliated Lenders and assignments to Affiliated Lenders will shall be subject to, and further governed by, the following provisions:
(A) Subject to clause (B) below, each Affiliated Lender, in connection with any (1) consent (or decision not to consent) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document, (2) other action on any matter related to any Loan Document or (3) direction to the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to any amendment, modification, waiver, consent or other action described in clause (i) or (ii) or (vii) of the first proviso of Section 10.02(b) or that adversely affects such Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall be deemed to have voted its interest as a Lender without discretion in such proportion as the allocation of voting with respect to such matter by Lenders of the same Class of Loans who are not Affiliated Lenders. Subject to clause (B) below, the Borrower and each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A)11.23.
(B) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender shall have any right to (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof as a contribution to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documents.
Appears in 1 contract
Assignments to Affiliated Lenders. Notwithstanding anything Any Lender may, at any time, assign all or a portion of its rights and obligation with respect to the contrary contained herein, any Loans under this Agreement to an Affiliated Lender may purchase (including Affiliated Investment Funds) pursuant to this Section 13.6 through (x) Dutch Auctions open to all Lenders of a particular Class of Term Loans hereunder from any Lender pursuant subject to an such Dutch Auction or on a non-pro rata basis pursuant to or (y) through open market or other purchases; provided that, in each case subject to the following additional conditions and limitations:
(i) no Default Affiliated Lenders shall not receive information provided solely to Lenders and the Administrative Agent and their respective advisors by the Administrative Agent or Event any Lender and shall not be permitted to attend or participate in meetings attended solely by Lenders and the Administrative Agent and their advisors, other than the right to receive notices of Default has occurred Borrowings, notices of prepayments and other administrative notices in respect of its Loans or is continuing or would result therefromCommitments required to be delivered to Lenders pursuant to Article II; provided that Affiliated Investment Funds shall not be subject to such limitation;
(ii) if such sale, assignment notwithstanding anything in Section 13.1 or transfer is pursuant to one or more Dutch auctions (each, an the definition of “Auction”), then (A) such Affiliated Lender must provide notice of, and the option to participate in, the Auction to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative Agent;
(iii) with respect to all assignments to an Affiliated Lender pursuant to this Section 10.04(f), the assigning Lender and the Affiliated Lender shall execute and deliver Required Lenders” to the Administrative Agent andcontrary, in for purposes of determining whether the case of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
(iv) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:
(A) Subject to clause (B) below, each Affiliated Lender, in connection with any have (1) consent (or decision not to consent) consented to any amendment, modification, waiver, consent waiver or other action with respect to any of the terms modification of any Loan DocumentCredit Document (including such modifications pursuant to Section 13.1), (2) other action otherwise acted on any matter related to any Loan Document or Credit Document, (3) direction to directed or required the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Credit Document, agrees that, except with respect to any amendment, modification, waiver, consent or other action described in clause (i) or (ii4) or (vii) voted on any plan of reorganization pursuant to Title 11 of the first proviso United States Code, that in either case does not require the consent of Section 10.02(b) each Lender or that each affected Lender or does not adversely affects affect such Affiliated Lender disproportionately in any material respect as compared to other Lenders, Affiliated Lenders of the same Class of Loans, shall will be deemed to have voted its interest as a Lender without discretion in such the same proportion as the allocation of voting with respect to such matter by Lenders of the same Class of Loans who that are not Affiliated Lenders. Subject to clause (B) below, the Borrower Lenders voting on such matter; and each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A).
(B) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender shall have any right to (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (2) receive any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.
(C) An Affiliated Lender may contribute the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof as a contribution to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement and all other Loan Documents.hereby
Appears in 1 contract
Assignments to Affiliated Lenders. Notwithstanding anything in this Agreement to the contrary contained hereincontrary, any Affiliated Lender may purchase may, at any time, assign all or a portion of its Term Loans hereunder from any Lender pursuant to an Auction or on a non-pro rata basis pursuant to open an Affiliated Lender through open-market or other purchases; provided that, subject to the following limitations:
(i) no Default or Event (a) the Affiliated Lender shall have identified itself in writing as an Affiliated Lender to the assigning Lender and the Administrative Agent prior to the execution of Default has occurred or is continuing or would result therefromsuch assignment and (b) the Affiliated Lender shall be deemed to have represented and warranted to the assigning Lender and the Administrative Agent that the requirements set forth in this Section 10.6(j), shall have been satisfied upon consummation of the applicable assignment;
(ii) if such saleAffiliated Lenders will not (a) have the right to receive information, assignment reports or transfer is pursuant other materials provided solely to one Lenders by the Agent or more Dutch auctions any other Lender, except to the extent made available to Borrower, (each, an “Auction”), then (Ab) such Affiliated Lender must provide notice of, attend or participate in meetings attended solely by the Lenders and the option Agent, or (c) access any electronic site established for the Lenders or confidential communications from counsel to participate in, or financial advisors of the Auction to all Lenders and (B) Agent or the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lender, the Auction Manager and the Administrative AgentLenders;
(iiia) with respect to all assignments to an Affiliated Lender pursuant to this Section 10.04(f), the assigning Lender and the Affiliated Lender shall execute and deliver to the Administrative Agent and, in the case for purposes of an Auction, the Auction Manager, an Assignment and Assumption with respect to such assignment;
(iv) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(v) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:
(A) Subject to clause (B) below, each Affiliated Lender, in connection with any (1) consent (or decision not to consent) to any amendment, modificationwaiver or modification of, waiveror any action under, consent or other action with respect to any of and for the terms purpose of any Loan Document, (2) other action on any matter related to any Loan Document or (3) direction to the Administrative Agent, the Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to under, this Agreement or under any Loan other Credit Document, agrees that, except each Affiliated Lender will be deemed to have consented in the same proportion as the Lenders that are not Affiliated Lenders consented to such matter; (b) with respect to any amendmentmatter requiring the vote of the holders of Term Loans pursuant to any insolvency proceeding under any Debtor Relief Laws (including for purposes of voting on any plan of reorganization or plan of liquidation), modificationeach Affiliated Lender hereby agrees: (i) to vote its Loans with respect to such matter in the same proportion as the Lenders that are not Affiliated Lenders voted with respect to such matter and (ii) not to contest any request by the Administrative Agent, waiver, consent the Collateral Agent or any Lender for a determination by the Bankruptcy Court (or other action described in applicable court of competent jurisdiction) enforcing the foregoing clause (i), in each case under this Section 10.6(j)(iii) or (ii) or (vii) of the first proviso of Section 10.02(b) or that unless matter materially adversely affects such Affiliated Lender more than other Lenders in any material respect as compared to other Lenders of the same Class of Loans, shall be deemed to have voted its interest as a Lender without discretion in such proportion as the allocation of voting with respect to such matter by Lenders of the same Class of Loans who are not Affiliated Lenders. Subject to clause (B) below, the Borrower and each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lenderrespect, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (Bc) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated LenderLender (solely in respect of Term Loans therein and not in respect of any other claim or status such Affiliated Lender may otherwise have), from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary or appropriate to carry out the provisions of this clause (ASection 10.6(j)(iii)., including to ensure that any vote of such Affiliated Lender on any matter in respect of any insolvency proceeding under any Debtor Relief Law is voted in accordance with the terms hereof;
(Ba) Notwithstanding anything to the contrary in this Agreement, no aggregate principal amount of Term Loans held at any one time by Affiliated Lender shall have any right to (1) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives Lenders may not exceed 20% of the Borrower aggregate outstanding principal amount of Term Loans and (b) the number of Affiliated Lenders must be less than the number of Lenders that are not then present, Affiliated Lenders;
(2v) receive the Affiliated Lenders (in their role as such) will not be entitled to bring actions against the any information or material prepared by Administrative Agent, the Collateral Agent or any Lender or any communication by or among Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives, or (3) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity role as such, or receive advice of counsel or other advisors to the Agents or the Lenders or challenge the attorney client privilege of their respective counsel; and
(vi) each Affiliated Lender that is a Lender hereunder agrees to comply with the terms of this Section 10.6(j) (notwithstanding that it may be granted access to any electronic site established for the Lenders by the Administrative Agent), and agrees that in any subsequent assignment of all or any portion of its Term Loans it shall identify itself in writing to the assignee as an Affiliated Lender prior to the execution of such assignment. Following the acquisition of any Term Loan by an Affiliated Lender, against Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents.
(C) An Affiliated Lender may contribute such Term Loan to the Loans purchased pursuant to this Section 10.04(fBorrower for purposes of cancelling such Term Loan, which may include contribution (with the consent of Borrower) to Holdings or the Borrower (whether through any of its direct or indirect parent thereof as a contribution to the equity of Holdings entities or such parent in return for additional Equity Interests (other than Disqualified Capital Stockotherwise) in Holdings exchange for debt or equity securities of the Borrower that are otherwise permitted by the Credit Documents to be issued by the Borrower at such parenttime. Any Loans Term Loan contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold by such Affiliated Lender, by Holdings, such parent, the Borrower or any of its Subsidiaries) for all purposes of this Agreement Subsidiaries shall be automatically and all other Loan Documentspermanently cancelled immediately upon receipt by Borrower or such Subsidiary.
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Assignments to Affiliated Lenders. (A) Notwithstanding anything contained herein to the contrary contained hereincontrary, any Affiliated Lender assignments may purchase be made of the Term Loans (including any Incremental Term Loan established hereunder from any Lender pursuant after the Closing Date) to an Auction or on a non-pro rata basis pursuant to open market or other purchasesAffiliated Lender; provided that:
(i1) no Default all such assignments shall be subject to the consent of the Administrative Agent which consent shall not be unreasonably withheld or Event of Default has occurred or is continuing or would result therefromdelayed;
(ii) if such sale, assignment or transfer is pursuant to one or more Dutch auctions (each, an “Auction”), then (A) such Affiliated Lender must provide notice of, and the option to participate in, the Auction to all Lenders and (B2) the Auction Administrative Agent shall be conducted pursuant to have received a fully executed Assignment and Assumption Agreement, with such procedures modifications as the Auction Manager Administrative Agent may establishreasonably require (and which may include, consistent with this Section 10.04(f) and otherwise reasonably acceptable to such Affiliated Lenderamong other things, the Auction Manager and the Administrative Agent;
(iii) with respect to all assignments to an Affiliated Lender pursuant to this Section 10.04(f), the assigning Lender and confirmation that the Affiliated Lender shall execute is an “accredited investor” as referenced and deliver to defined in Regulation D under the Administrative Agent and, Securities Act of 1933 and that it is making the purchase for its own account in the case ordinary course and without a view to distribution within the meaning of an Auction, the Auction Manager, an Assignment Securities Act of 1933 and Assumption with respect to such assignment;the Securities Exchange Act of 1934 or other securities laws); and
(iv3) no Term Loan may be assigned to an Affiliated Lender pursuant to this Section 10.04(f), if, at the time of such assignment, after giving effect to any such assignment, Affiliated Lenders in the aggregate would own Term Loans with a principal amount in excess of 25% of the principal amount of all Term Loans then outstanding;
(vincluding any Incremental Term Loan established hereunder after the Closing Date) such Affiliated Lender, if it shall be a Lender, shall deliver to the Administrative Agent any tax forms required to be delivered pursuant to this Agreement; and
(vi) held by all Affiliated Lenders and assignments to Affiliated Lenders will be subject to, and further governed by, the following provisions:
shall not exceed ten percent (A) Subject to clause (B) below, each Affiliated Lender, in connection with any (1) consent (or decision not to consent) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document, (2) other action on any matter related to any Loan Document or (3) direction to the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, agrees that, except with respect to any amendment, modification, waiver, consent or other action described in clause (i) or (ii) or (vii10%) of the first proviso aggregate principal amount of Section 10.02(ball Term Loans (including any Incremental Term Loan established hereunder after the Closing Date) or that adversely affects such Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall be deemed to have voted its interest as a Lender without discretion in such proportion as the allocation of voting with respect to such matter by Lenders of the same Class of Loans who are not Affiliated Lenders. Subject to clause (B) below, the Borrower and each Affiliated Lender hereby agrees that if a case under Title 11 of the United States Code is commenced against the Borrower, the Borrower, with respect to any plan of reorganization that does not adversely affect any Affiliated Lender in any material respect as compared to other Lenders of the same Class of Loans, shall seek (and each Affiliated Lender shall consent) to designate the vote of any Affiliated Lender, and the vote of any Affiliated Lender with respect to any such plan of reorganization of the Borrower or any Affiliate of the Borrower shall not be counted. Subject to clause (B) below, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (A)then outstanding.
(B) Notwithstanding anything contained herein to the contrary in this Agreementcontrary, no Affiliated Lender shall have any right to (1i1) participate in any matter requiring a vote of the Term Loan Lenders, and the Term Loans held by the Affiliated Lenders shall be deemed to have been voted in same proportion as the allocation of voting with respect such matter by Term Loan Lenders who are not Affiliated Lenders so long as such Affiliated Lender and its Term Loans are treated in connection with the exercise of such right or taking of such action on the same or better terms as the other Term Loan Lenders, (ii2) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower Loan Parties are not then presentinvited, (2iii3) receive any information or material prepared by the Administrative Agent, the Collateral Agent or any Lender or any communication by or among the Administrative Agent, the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower Loan Parties or its their representatives, or (3iv4) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against the Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Administrative Agent, Collateral Agent or any other such Lender under the Loan Documents.
(C) An Each Affiliated Lender, solely in its capacity as a Term Loan Lender, hereby agrees, and each Assignment and Assumption Agreement with an Affiliated Lender may contribute shall provide a confirmation that, if any Loan Party shall be subject to any voluntary or involuntary proceeding commended under any Debtor Relief Laws (“Bankruptcy Proceedings”), (i1) such Affiliated Lender shall not take any step or action in such Bankruptcy Proceeding to object to, impede or delay the exercise of any right or the taking of any action by the Administrative Agent (or the taking of any action by a third party that is supported by the Administrative Agent) in relation to such Affiliated Lender’s claim with respect to its Loans (a “Claim”) (including, without limitation, objecting to any debtor in possession financing, use of cash collateral, grant of adequate protection, sale or disposition, compromise or plan of reorganization) so long as such Affiliated Lender is treated in connection with such exercise or action on the same or better terms as the other Term Loan Lenders and (ii2) with respect to any matter requiring the vote of the Term Loan Lenders during the pendency of a Bankruptcy Proceeding (including, without limitation, voting on any plan of reorganization), the Loans purchased pursuant to this Section 10.04(f) to Holdings or any direct or indirect parent thereof as a contribution to the equity of Holdings or such parent in return for additional Equity Interests (other than Disqualified Capital Stock) in Holdings or such parent. Any Loans contributed to Holdings pursuant to the foregoing sentence shall immediately be deemed canceled and no longer outstanding (and may not be resold held by such Affiliated Lender (and any Claim with respect thereto) shall be deemed to be voted in the same proportion as the allocation of voting with respect to such matter by Lenders who are not Affiliated Lenders so long as such Affiliated Lender is treated in connection with the exercise of such right or taking of such action on the same or better terms as the other Term Loan Lenders. For the avoidance of doubt, the Lenders and each Affiliated Lender agree and acknowledge that the provisions set forth in clauses (i1) and (ii2) of this Section 11.06(b)(vii), and the related provisions set forth in the Assignment and Assumption Agreement for each Affiliated Lender, shall be enforceable as if such provisions constituted a “subordination agreement” as such term is contemplated by, and utilized in, Section 510(a) of the Bankruptcy Code (or comparable provision of any other Debtor Relief Law), and, as such, would be enforceable for all purposes in any case where a Loan Party has filed for protection under any Debtor Relief Law applicable to such Loan Party. Subject to acceptance and recording thereof by Holdingsthe Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such parentLender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or any transfer by a Lender of its Subsidiaries) rights or obligations under this Agreement that does not comply with this subsection shall be treated for all purposes of this Agreement as a sale by such Lender of a participation in such rights and all other Loan Documentsobligations in accordance with subsection (d) of this Section.
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