Common use of Assignments to Holdings, Borrower or its Subsidiaries Clause in Contracts

Assignments to Holdings, Borrower or its Subsidiaries. Notwithstanding anything to the contrary contained in this Section 10.6 or any other provision of this Agreement, so long as no Event of Default has occurred and is continuing or would result therefrom, each Lender shall have the right at any time to sell, assign or transfer all or a portion of its Term Loans owing to it to Holdings, Borrower or any of their respective Subsidiaries on a non-pro rata basis (provided, 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 Term Loan and any related Term Loan Commitments), subject to the following limitations: (i) Holdings, Borrower or any of their respective Subsidiaries may conduct one or more modified Dutch auctions (each, an “Auction”) to repurchase all or any portion of the Term Loans not to exceed $200,000,000 in the aggregate, provided that (A) notice of the Auction shall be made to all Term Loan Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish which are consistent with this Section 10.6(i) and the Auction Procedures set forth on Exhibit J and are otherwise reasonably acceptable to Borrower, the Auction Manager (and, if the Auction Manager is not the Administrative Agent, the Administrative Agent); (ii) With respect to all repurchases made by Holdings, Borrower or any of their respective Subsidiaries pursuant to this Section 10.6(i), (A) Borrower shall deliver to the Auction Manager a certificate of an Authorized Officer stating that (1) no Event of Default has occurred and is continuing or would result from such repurchase and (2) as of the launch date of the related Auction and the effective date of any Affiliate Assignment Agreement, it is not in possession of any information regarding Holdings, Borrower or their respective Subsidiaries, or their assets, Borrower’s ability to perform its Obligations or any other matter that may be material to a decision by any Lender to participate in any Auction or enter into any Affiliate Assignment Agreement or any of the transactions contemplated thereby that has not previously been disclosed to the Auction Manager, the Non-Public Lenders (and, if the Administrative Agent is not the Auction Manager, the Administrative Agent), (B) neither Holdings, Borrower nor any of their respective Subsidiaries shall use the proceeds of any loans under the Revolving Credit Agreement or any Alternative Facility to acquire such Loans, (C) the assigning Lender and Holdings, Borrower or the applicable Subsidiary shall execute and deliver to the Auction Manager an Affiliate Assignment Agreement and (D) Excess Availability at such time (after giving effect to the consummation of the respective repurchase) shall equal or exceed $50,000,000 both before and after giving effect to the assignments noted in this Section 10.6(i). (iii) Following repurchase by Holdings, Borrower or any of their respective Subsidiaries pursuant to this Section 10.6(i), 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), for all purposes of this Agreement and all other Credit 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 Credit Document, (B) the making of any request, demand, authorization, direction, notice, consent or waiver under this Agreement or any other Credit Document or (C) the determination of Requisite Lenders, or for any similar or related purpose, under this Agreement or any other Credit Document. In connection with any Term Loans repurchased and cancelled pursuant to this Section 10.6(i), Administrative Agent is authorized to make appropriate entries in the Register to reflect any such cancellation. (iv) It is acknowledged and agreed that a purchase of Loans by Holdings, Borrower or any of their respective Subsidiaries (and the purchase price paid to any Lender in consideration of the purchase of such Lender’s Loans in connection therewith) shall not constitute a prepayment or payment for purposes of Section 2 or any other provision of this Agreement, and for the avoidance of doubt, such transactions shall not reduce any Consolidated Excess Cash Flow payments required hereunder.