Designation and Assignment Rights. (a) The Commitment Parties shall not be entitled to Transfer all or any portion of their Debt Commitments or Equity Commitments, as applicable, except as expressly provided in this Section 2.6(a). Notwithstanding anything to the contrary in the immediately preceding sentence or otherwise in this Agreement, each Commitment Party shall have the right to Transfer all or any portion of its Debt Commitment or Equity Commitment, as applicable, to (i) an Affiliate or Affiliated Fund of the transferring Commitment Party (other than a portfolio company of the Commitment Party, its Affiliates or Affiliated Funds), (ii) one or more special purpose vehicles that are wholly owned by one or more of such Commitment Parties, its Affiliates and its Affiliated Funds, created for the purpose of holding such obligations or holding debt or equity of New Seadrill, the Company or its Subsidiaries and (iii) with respect to Debt Commitments only, to third-party investors (other than to institutions identified by name and designated in writing by the Company prior to the date of this Agreement (“Company Disqualified Institutions”)) identified by such Commitment Party (with the written consent of the other Debt Commitment Parties); provided that in the case of (i), (ii) and (iii), prior to such Transfer, the transferring Commitment Party shall provide the Company with reasonably sufficient evidence of such transferee’s (x) creditworthiness in relation to the obligation being transferred and (y) capability of consummating the transactions contemplated hereby in a timely fashion; provided, further, that such transferee shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such transferee shall not be directly or indirectly transferable other than to such Persons described in clauses (i), (ii) or (iii) of this Section 2.6(a), and in such manner as such Commitment Party’s obligation is transferable pursuant to this Section 2.6(a) (each of the Persons referred to in clauses (i), (ii) and (iii), an “Ultimate Purchaser”). In each case of a Commitment Party’s Transfer of all or any portion of its Debt Commitment or Equity Commitment, as applicable, pursuant to this Section 2.6(a), (1) the Ultimate Purchaser shall have provided a written agreement to the Company under which it (w) confirms the accuracy of the representations and warranties set forth in Article IV as applied to such Ultimate Purchaser, (x) agrees to purchase such portion of such Commitment Party’s Debt Commitment or the Equity Commitment, as applicable, (y) agrees to be fully bound by, and subject to, this Agreement as a Debt Commitment Party or Equity Commitment Party, as applicable, by executing a Joinder Agreement and (z) executes a joinder agreement for the Escrow Agreement in the form of the joinder agreement attached thereto, and (2) the transferring Commitment Party and the Ultimate Purchaser shall have duly executed and delivered to the Company and Xxxxxxxx & Xxxxx LLP (at the addresses set forth in Section 10.1) written notice of such Transfer; provided, however, that unless the Company has consented (in its sole discretion) that such Transfer will relieve the transferring Commitment Party of its obligations hereunder (a “Full Transfer”), no such Transfer shall relieve the transferring Commitment Party from any of its obligations hereunder. For the avoidance of doubt, unless the Company consents to a Full Transfer, if such Ultimate Purchaser becomes a Defaulting Party, no provision of this Agreement shall relieve any Defaulting Party or the Commitment Party that transferred all or any portion of its Debt Commitments or Equity Commitments, as applicable, to such Defaulting Party, from liability hereunder, or limit the availability of the remedies set forth in Section 10.9. If the Company has consented to a Full Transfer (in its sole discretion), then after such Full Transfer, the transferring Commitment Party shall no longer be obligated to fund that portion of the Commitment Party’s Debt Commitment Funding Amount and/or Equity Commitment Funding Amount so transferred and if such Ultimate Purchaser becomes a Defaulting Party, the Commitment Party that transferred all or any portion of its Debt Commitment or Equity Commitment, as applicable, to such Defaulting Party shall not be liable for any obligations of such Defaulting Party. Other than as set forth in this Section 2.6(a), no Commitment Party shall be permitted to Transfer all or any portion of its Debt Commitment or Equity Commitment, as applicable, without the prior written consent of the Company, which, as applied to Transfers other than a Full Transfer, shall not be unreasonably withheld, conditioned or delayed.
Appears in 2 contracts
Samples: Investment Agreement (Seadrill LTD), Investment Agreement (North Atlantic Drilling Ltd.)
Designation and Assignment Rights. (a) The Commitment Parties shall not be entitled to Transfer all or any portion of their Debt Commitments or Equity Commitments, as applicable, except as expressly provided in this Section 2.6(a). Notwithstanding anything to the contrary in the immediately preceding sentence or otherwise in this Agreement, each Commitment Each Private Placement Party shall have the right to Transfer designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all or any portion of its Debt Commitment or Equity Commitment, as applicable, to (i) an Affiliate or Affiliated Fund of the transferring Commitment Party (other than a portfolio company of Private Placement Shares that it is obligated to purchase hereunder be issued in the Commitment Partyname of, its Affiliates or Affiliated Funds)and delivered to, (ii) one or more special purpose vehicles that are wholly owned by one or more of such Commitment Parties, its Affiliates and its Affiliated Funds, created for the purpose of holding such obligations or holding debt or equity of New Seadrill, the Company or its Subsidiaries and (iii) with respect to Debt Commitments only, to third-party investors (other than to institutions identified by name and designated in writing by the Company prior to the date of this Agreement (“Company Disqualified Institutions”)) identified by such Commitment Party (with the written consent of the other Debt Commitment Parties); provided that in the case of (i), (ii) and (iii), prior to such Transfer, the transferring Commitment Party shall provide the Company with reasonably sufficient evidence of such transferee’s (x) creditworthiness in relation to the obligation being transferred and (y) capability of consummating the transactions contemplated hereby in a timely fashion; provided, further, that such transferee shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity any portfolio company of such transferee Private Placement Party or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall not be directly or indirectly transferable other than to such Persons described in clauses (i)) be addressed to the Company and signed by such Private Placement Party and each such Related Purchaser, (ii) specify the number of Private Placement Shares to be delivered to or issued in the name of such Related Purchaser and (iii) of this contain representations by such Related Purchaser as to the matters set forth in Section 2.6(a)5.6 through Section 5.9 as if such Related Purchaser was a Private Placement Party; provided, and in that no such manner as such Commitment Party’s obligation is transferable designation pursuant to this Section 2.6(a2.7(a) shall relieve such Private Placement Party from its obligations under this Agreement or the Plan Support Agreement. In addition, the Requisite Members of the Noteholder Steering Committee in consultation with the other members of the Noteholder Steering Committee may agree in writing to reallocate a portion of the rights to purchase Private Placement Shares referred to in clause (i) of Section 2.2(b), or the economics relating thereto, committed to be purchased by the Initial Private Placement Parties (provided that no individual member of the Noteholder Steering Committee may be disproportionately affected), up until the commencement of the hearing on the PPA and BCA Approval Motion, and any Initial Private Placement Party that does not wish to participate in such reallocation may, upon written notice to such Requisite Members of the Noteholder Steering Committee, cease to be an Initial Private Placement Party and an Initial Commitment Party under the Backstop Commitment Agreement. Such withdrawing Initial Private Placement Party thereafter will have no rights or obligations as an Initial Private Placement Party under this Agreement or as an Initial Commitment Party under the Backstop Commitment Agreement. Following such a withdrawal, each of the Persons referred non-withdrawing Initial Private Placement Parties shall have the obligation, within three (3) Business Days after receipt of written notice from such withdrawing Initial Private Placement Party, to in clauses assume (i), (iiseverally and not jointly) and (iii), an “Ultimate Purchaser”). In each case of a Commitment such withdrawing Initial Private Placement Party’s Transfer of obligation to purchase all or any portion of its Debt Commitment or Equity Commitment, as applicable, pursuant to this Section 2.6(a), (1) the Ultimate Purchaser shall have provided a written agreement to the Company under which it (w) confirms the accuracy of the representations withdrawing Private Placement Party’s Private Placement Commitment on the terms and warranties conditions set forth in Article IV as applied to such Ultimate Purchaser, (x) agrees to purchase such portion this Agreement based upon the relative applicable Private Placement Percentages of such Commitment Party’s Debt Commitment or the Equity Commitment, as applicable, Initial Private Placement Parties (y) agrees to be fully bound by, and subject to, this Agreement as a Debt Commitment Party or Equity Commitment Party, as applicable, by executing a Joinder Agreement and (z) executes a joinder agreement for the Escrow Agreement in the form of the joinder agreement attached thereto, and (2) the transferring Commitment Party and the Ultimate Purchaser shall have duly executed and delivered to the Company and Xxxxxxxx & Xxxxx LLP (at the addresses set forth in Section 10.1) written notice of such Transfer; provided, however, that unless the Company has consented (in its sole discretion) that such Transfer will relieve the transferring Commitment Party of its obligations hereunder (a “Full Transfer”other than any withdrawing Initial Private Placement Parties), no such Transfer shall relieve the transferring Commitment Party from any of its obligations hereunder. For the avoidance of doubt, unless the Company consents withdrawal of an Initial Private Placement Party pursuant to a Full Transferthis Section 2.7(a) shall result in (i) the removal of such Initial Private Placement Party from the Noteholder Steering Committee, and (ii) the reallocation of the voting power attributable to the face amount of such withdrawing Initial Private Placement Party’s claims as if such Ultimate Purchaser becomes a Defaulting Party, no provision claims were assigned or transferred pursuant to Exhibit C hereto and the definition of this Agreement shall relieve any Defaulting Party or the Commitment Party that transferred all or any portion of its Debt Commitments or Equity Commitments, as applicable, to such Defaulting Party, from liability hereunder, or limit the availability “Requisite Members of the remedies set forth in Section 10.9. If the Company has consented to a Full Transfer (in its sole discretion), then after such Full Transfer, the transferring Commitment Party shall no longer be obligated to fund that portion of the Commitment Party’s Debt Commitment Funding Amount and/or Equity Commitment Funding Amount so transferred and if such Ultimate Purchaser becomes a Defaulting Party, the Commitment Party that transferred all or any portion of its Debt Commitment or Equity Commitment, as applicable, to such Defaulting Party shall not be liable for any obligations of such Defaulting Party. Other than as set forth in this Section 2.6(a), no Commitment Party shall be permitted to Transfer all or any portion of its Debt Commitment or Equity Commitment, as applicable, without the prior written consent of the Company, which, as applied to Transfers other than a Full Transfer, shall not be unreasonably withheld, conditioned or delayedNoteholder Steering Committee.”
Appears in 2 contracts
Samples: Private Placement Agreement, Private Placement Agreement (Peabody Energy Corp)
Designation and Assignment Rights. (a) The Commitment Parties shall not be entitled to Transfer all or any portion of their Debt Commitments or Equity Commitments, as applicable, except as expressly provided in this Section 2.6(a). Notwithstanding anything to the contrary in the immediately preceding sentence or otherwise in this Agreement, each Each Commitment Party shall have the right to Transfer designate by written notice to PermianCo (if formed) and the Company no later than two Business Days prior to the Closing Date that some or all or any portion of its Debt Commitment or Equity Commitment, as applicable, to (i) an Affiliate or Affiliated Fund of the transferring Unsubscribed Securities that such Commitment Party is required to purchase in accordance with Section 2.2, Rights Offering Securities delivered in connection with the exercise of Subscription Rights (other than a portfolio company if any), the Minimum Allocation Rights Securities that it is obligated to purchase hereunder and the PermianCo Common Stock in respect of the Commitment PartyPut Option Premium be issued in the name of, its Affiliates or Affiliated Funds)and delivered to, (ii) one or more special purpose vehicles that are wholly owned by one or more of such Commitment Parties, its Affiliates and its Affiliated Funds, created for the purpose of holding such obligations or holding debt or equity of New Seadrill, the Company or its Subsidiaries and (iii) with respect to Debt Commitments only, to third-party investors Related Transferees (other than to institutions identified by name and designated in writing by the Company prior to the date of this Agreement (“Company Disqualified Institutions”)) identified by such Commitment Party (with the written consent of the other Debt Commitment Parties); provided that in the case of (i), (ii) and (iii), prior to such Transfer, the transferring Commitment Party shall provide the Company with reasonably sufficient evidence of such transferee’s (x) creditworthiness in relation to the obligation being transferred and (y) capability of consummating the transactions contemplated hereby in a timely fashion; provided, further, that such transferee shall not be related to or Affiliated with any portfolio company of such Commitment Party or any its Affiliates) upon receipt by the Company on behalf of its Affiliates or Affiliated Funds PermianCo of payment therefor in accordance with the terms hereof, which notice of designation shall (other than solely i) be addressed to PermianCo and the Company and signed by virtue of its affiliation with such Commitment Party) Party and the equity of each such transferee shall not be directly or indirectly transferable other than to such Persons described in clauses (i)Related Transferee, (ii) specify the number of Unsubscribed Securities delivered in connection with the exercise of Subscription Rights (if any) and/or the Minimum Allocation Rights Securities that it is obligated to purchase hereunder and the PermianCo Common Stock in respect of the Put Option Premium to be delivered to or issued in the name of such Related Transferee and (iii) contain a confirmation by each such Related Transferee of this Section 2.6(athe accuracy of the representations set forth in Sections 4.6 through 4.12 as applied to such Related Transferee in respect of the Unsubscribed Securities (or any other PermianCo Common Stock not issued in reliance on section 1145 of the Bankruptcy Code); provided, and in that no such manner as such Commitment Party’s obligation is transferable designation pursuant to this Section 2.6(a) (each of the Persons referred to in clauses (i), (ii) and (iii), an “Ultimate Purchaser”). In each case of a Commitment Party’s Transfer of all or any portion of its Debt Commitment or Equity Commitment, as applicable, pursuant to this Section 2.6(a), (1) the Ultimate Purchaser shall have provided a written agreement to the Company under which it (w) confirms the accuracy of the representations and warranties set forth in Article IV as applied to such Ultimate Purchaser, (x) agrees to purchase such portion of such Commitment Party’s Debt Commitment or the Equity Commitment, as applicable, (y) agrees to be fully bound by, and subject to, this Agreement as a Debt Commitment Party or Equity Commitment Party, as applicable, by executing a Joinder Agreement and (z) executes a joinder agreement for the Escrow Agreement in the form of the joinder agreement attached thereto, and (2) the transferring Commitment Party and the Ultimate Purchaser shall have duly executed and delivered to the Company and Xxxxxxxx & Xxxxx LLP (at the addresses set forth in Section 10.1) written notice of such Transfer; provided, however, that unless the Company has consented (in its sole discretion) that such Transfer will relieve the transferring Commitment Party of its obligations hereunder (a “Full Transfer”), no such Transfer shall relieve the transferring such Commitment Party from any of its obligations hereunder. For the avoidance of doubt, unless the Company consents to a Full Transfer, if such Ultimate Purchaser becomes a Defaulting Party, no provision of under this Agreement shall relieve any Defaulting Party or the Commitment Party that transferred all or any portion of its Debt Commitments or Equity Commitments, as applicable, to such Defaulting Party, from liability hereunder, or limit the availability of the remedies set forth in Section 10.9. If the Company has consented to a Full Transfer (in its sole discretion), then after such Full Transfer, the transferring Commitment Party shall no longer be obligated to fund that portion of the Commitment Party’s Debt Commitment Funding Amount and/or Equity Commitment Funding Amount so transferred and if such Ultimate Purchaser becomes a Defaulting Party, the Commitment Party that transferred all or any portion of its Debt Commitment or Equity Commitment, as applicable, to such Defaulting Party shall not be liable for any obligations of such Defaulting Party. Other than as set forth in this Section 2.6(a), no Commitment Party shall be permitted to Transfer all or any portion of its Debt Commitment or Equity Commitment, as applicable, without the prior written consent of the Company, which, as applied to Transfers other than a Full Transfer, shall not be unreasonably withheld, conditioned or delayedAgreement.
Appears in 1 contract
Samples: Backstop Commitment Agreement (Breitburn Energy Partners LP)
Designation and Assignment Rights. (a) The Commitment Parties shall not be entitled to Transfer all or any portion of their Debt Commitments or Equity Commitments, as applicable, except as expressly provided in this Section 2.6(a). Notwithstanding anything to the contrary in the immediately preceding sentence or otherwise in this Agreement, each Each Commitment Party shall have the right to Transfer designate by written notice to the Company no later than two (2) Business Days prior to the Closing Date that some or all or any portion of its Debt Commitment or Equity Commitment, as applicable, to (i) an Affiliate or Affiliated Fund of the transferring Commitment Party (other than a portfolio company of Rights Offering Shares and Unsubscribed Shares that it is obligated to purchase hereunder be issued in the Commitment Partyname of, its Affiliates or Affiliated Funds)and delivered to, (ii) one or more special purpose vehicles that are wholly owned by one or more of such Commitment Parties, its Affiliates and its Affiliated Funds, created for the purpose of holding such obligations or holding debt or equity of New Seadrill, the Company or its Subsidiaries and (iii) with respect to Debt Commitments only, to third-party investors (other than to institutions identified by name and designated in writing by the Company prior to the date of this Agreement (“Company Disqualified Institutions”)) identified by such Commitment Party (with the written consent of the other Debt Commitment Parties); provided that in the case of (i), (ii) and (iii), prior to such Transfer, the transferring Commitment Party shall provide the Company with reasonably sufficient evidence of such transferee’s (x) creditworthiness in relation to the obligation being transferred and (y) capability of consummating the transactions contemplated hereby in a timely fashion; provided, further, that such transferee shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue any portfolio company of its affiliation with such Commitment PartyParty or its Affiliates) and (each, a “Related Purchaser”) upon receipt by the equity Company of such transferee payment therefor in accordance with the terms hereof, which notice of designation shall not be directly or indirectly transferable other than to such Persons described in clauses (i)) be addressed to the Company and signed by such Commitment Party and each such Related Purchaser, (ii) specify the number of Rights Offering Shares and Unsubscribed Shares to be delivered to or issued in the name of such Related Purchaser and (iii) of contain representations by such Related Purchaser as to the matters set forth in Section 5.6 through Section 5.9 as if such Related Purchaser was a Commitment Party; provided, that no such designation pursuant to this Section 2.6(a2.7(a) shall relieve such Commitment Party from its obligations under this Agreement or the Plan Support Agreement. In addition, the Requisite Members of the Noteholder Steering Committee in consultation with the other members of the Noteholder Steering Committee may agree in writing to reallocate a portion of the rights to purchase Rights Offering Shares and Unsubscribed Shares, or the economics relating thereto, committed to be purchased by the Initial Commitment Parties (provided that no individual member of the Noteholder Steering Committee may be disproportionately affected), up until the commencement of the hearing on the PPA and BCA Approval Motion, and any Initial Commitment Party that does not wish to participate in such manner reallocation may, upon written notice to such Requisite Members of the Noteholder Steering Committee, cease to be an Initial Commitment Party and an Initial Private Placement Party under the Private Placement Agreement. Such withdrawing Initial Commitment Party thereafter will have no rights or obligations as an Initial Commitment Party under this Agreement or as an Initial Private Placement Party under the Private Placement Agreement. Following such a withdrawal, each of the non-withdrawing Initial Commitment Parties shall have the obligation, within three (3) Business Days after receipt of written notice from such withdrawing Initial Commitment Party, to assume (severally and not jointly) such withdrawing Initial Commitment Party’s obligation is transferable pursuant to this Section 2.6(a) (each purchase all of the Persons referred to in clauses (i), (ii) and (iii), an “Ultimate Purchaser”). In each case of a withdrawing Commitment Party’s Transfer of all or any portion of its Debt Backstop Commitment or Equity Commitment, as applicable, pursuant to this Section 2.6(a), (1) on the Ultimate Purchaser shall have provided a written agreement to the Company under which it (w) confirms the accuracy of the representations terms and warranties conditions set forth in Article IV as applied to such Ultimate Purchaser, (x) agrees to purchase such portion this Agreement based upon the relative applicable Backstop Commitment Percentages of such Initial Commitment Party’s Debt Parties (other than any withdrawing Initial Commitment or the Equity Commitment, as applicable, (y) agrees to be fully bound by, and subject to, this Agreement as a Debt Commitment Party or Equity Commitment Party, as applicable, by executing a Joinder Agreement and (z) executes a joinder agreement for the Escrow Agreement in the form of the joinder agreement attached thereto, and (2) the transferring Commitment Party and the Ultimate Purchaser shall have duly executed and delivered to the Company and Xxxxxxxx & Xxxxx LLP (at the addresses set forth in Section 10.1) written notice of such Transfer; provided, however, that unless the Company has consented (in its sole discretion) that such Transfer will relieve the transferring Commitment Party of its obligations hereunder (a “Full Transfer”Parties), no such Transfer shall relieve the transferring Commitment Party from any of its obligations hereunder. For the avoidance of doubt, unless the Company consents to a Full Transfer, if such Ultimate Purchaser becomes a Defaulting Party, no provision withdrawal of this Agreement shall relieve any Defaulting Party or the an Initial Commitment Party that transferred all or any portion pursuant to this Section 2.7(a) shall result in (i) the removal of its Debt Commitments or Equity Commitmentssuch Initial Commitment Party from the Noteholder Steering Committee, as applicable, to such Defaulting Party, from liability hereunder, or limit and (ii) the availability reallocation of the remedies set forth in Section 10.9. If voting power attributable to the Company has consented to a Full Transfer (in its sole discretion), then after face amount of such Full Transfer, the transferring Commitment Party shall no longer be obligated to fund that portion of the withdrawing Initial Commitment Party’s Debt Commitment Funding Amount and/or Equity Commitment Funding Amount so transferred and claims as if such Ultimate Purchaser becomes a Defaulting Party, claims were assigned or transferred pursuant to Exhibit C hereto and the Commitment Party that transferred all or any portion definition of its Debt Commitment or Equity Commitment, as applicable, to such Defaulting Party shall not be liable for any obligations of such Defaulting Party. Other than as set forth in this Section 2.6(a), no Commitment Party shall be permitted to Transfer all or any portion of its Debt Commitment or Equity Commitment, as applicable, without the prior written consent “Requisite Members of the Company, which, as applied to Transfers other than a Full Transfer, shall not be unreasonably withheld, conditioned or delayedNoteholder Steering Committee.”
Appears in 1 contract
Samples: Backstop Commitment Agreement (Peabody Energy Corp)
Designation and Assignment Rights. (a) The Commitment Parties shall not be entitled to Transfer all or any portion of their Debt Commitments or Equity Commitments, as applicable, except Other than as expressly provided set forth in this Section 2.6(a)2.6, no Commitment Party shall be permitted to Transfer its Commitments. Notwithstanding anything (b) Each Commitment Party shall have the right to designate by written notice to the contrary Company, the Subscription Agent and Milbank, no later than two (2) Business Days prior to the Closing Date that some or all of the Unsubscribed Units or 4(a)(2) Backstop Commitment Units that it is obligated to purchase hereunder be issued in the immediately preceding sentence name of, and delivered to, one or otherwise more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party (or its Affiliates) or any Subsidiary thereof) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Units or 4(a)(2) Backstop Commitment Units to be delivered to or issued in the name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations set forth in Sections 5.6 through 5.9 as applied to such Related Purchaser; provided, that no such Transfer pursuant to this Section 2.6(b) shall relieve such Commitment Party from its obligations under this Agreement. Additionally, subject to Section 2.6(e), each Commitment Party shall have the right to Transfer all or any portion of its Debt Commitments to any creditworthy Related Purchaser, provided, that such Commitment or Equity Commitment, as applicable, to Party shall (i) an Affiliate or Affiliated Fund provide written notice to the Company of the transferring Commitment Party (other than a portfolio company of the Commitment Party, its Affiliates or Affiliated Funds), such Transfer as far in advance thereof as practicable and (ii) one or more special purpose vehicles that are wholly owned by one or more of such Commitment Parties, its Affiliates and its Affiliated Funds, created for deliver to the purpose of holding such obligations or holding debt or equity of New SeadrillCompany, the Company or its Subsidiaries Rights Offering Subscription Agent and (iii) with respect Milbank a joinder to Debt Commitments onlythis Agreement, to third-party investors (other than to institutions identified by name and designated substantially in writing by the Company prior to the date of this Agreement (“Company Disqualified Institutions”)) identified form attached hereto as Exhibit B, executed by such Commitment Party and such Related Purchaser. (with the written consent of the other Debt Commitment Parties); provided that in the case of (ic) Subject to Section 2.6(e), (ii) and (iii), prior to such Transfer, the transferring each Commitment Party shall provide have the Company with reasonably sufficient evidence of such transferee’s (x) creditworthiness in relation to the obligation being transferred and (y) capability of consummating the transactions contemplated hereby in a timely fashion; provided, further, that such transferee shall not be related to or Affiliated with any portfolio company of such Commitment Party or any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the equity of such transferee shall not be directly or indirectly transferable other than to such Persons described in clauses (i), (ii) or (iii) of this Section 2.6(a), and in such manner as such Commitment Party’s obligation is transferable pursuant to this Section 2.6(a) (each of the Persons referred to in clauses (i), (ii) and (iii), an “Ultimate Purchaser”). In each case of a Commitment Party’s Transfer of all or any portion of its Debt Commitment or Equity Commitment, as applicable, pursuant to this Section 2.6(a), (1) the Ultimate Purchaser shall have provided a written agreement to the Company under which it (w) confirms the accuracy of the representations and warranties set forth in Article IV as applied to such Ultimate Purchaser, (x) agrees to purchase such portion of such Commitment Party’s Debt Commitment or the Equity Commitment, as applicable, (y) agrees to be fully bound by, and subject to, this Agreement as a Debt Commitment Party or Equity Commitment Party, as applicable, by executing a Joinder Agreement and (z) executes a joinder agreement for the Escrow Agreement in the form of the joinder agreement attached thereto, and (2) the transferring Commitment Party and the Ultimate Purchaser shall have duly executed and delivered to the Company and Xxxxxxxx & Xxxxx LLP (at the addresses set forth in Section 10.1) written notice of such Transfer; provided, however, that unless the Company has consented (in its sole discretion) that such Transfer will relieve the transferring Commitment Party of its obligations hereunder (a “Full Transfer”), no such Transfer shall relieve the transferring Commitment Party from any of its obligations hereunder. For the avoidance of doubt, unless the Company consents to a Full Transfer, if such Ultimate Purchaser becomes a Defaulting Party, no provision of this Agreement shall relieve any Defaulting Party or the Commitment Party that transferred all or any portion of its Debt Commitments or Equity Commitments, as applicable, to such Defaulting Party, from liability hereunder, or limit the availability of the remedies set forth in Section 10.9. If the Company has consented to a Full Transfer (in its sole discretion), then after such Full Transfer, the transferring Commitment Party shall no longer be obligated to fund that portion of the Commitment Party’s Debt Commitment Funding Amount and/or Equity Commitment Funding Amount so transferred and if such Ultimate Purchaser becomes a Defaulting Party, the Commitment Party that transferred all or any portion of its Debt Commitment or Equity Commitment, as applicable, to such Defaulting Party shall not be liable for any obligations of such Defaulting Party. Other than as set forth in this Section 2.6(a), no Commitment Party shall be permitted right to Transfer all or any portion of its Debt Commitments to any other Commitment Party or Equity Commitmentsuch other Commitment Party’s Related Purchaser (each, an “Existing Commitment Party Purchaser”), provided, that (i) such Existing Commitment Party Purchaser or such Existing Commitment Party Purchaser’s Affiliate or Related Fund shall have been a Commitment Party as applicableof immediately prior to such Transfer and (ii)(1) to the extent such Existing Commitment Party Purchaser is not a Commitment Party hereunder, without the prior written consent of such Commitment Party shall deliver to the Company, whichthe Rights Offering Subscription Agent and Milbank a joinder to this Agreement, substantially in the form attached hereto as applied Exhibit C-1, executed by such Commitment Party and such Existing Commitment Party Purchaser and (2) to Transfers other than the extent such Existing Commitment Party Purchaser is already a Full TransferCommitment Party hereunder, such Commitment Party shall not be unreasonably withheld, conditioned or delayed.deliver
Appears in 1 contract
Samples: Investment Agreement (Vanguard Natural Resources, Inc.)
