Call Option. (a) At any time no later than 6 months prior to the third anniversary of the Effective Date (the "Option Termination Date"), the Maguire Members or either of them may deliver written notice to RECP (▇▇▇ "Call Notice"), on behalf of themselves or the Company, that they elect to purchase all but not less than all of the Managing Member Interests (including for the purposes of this Section 3, any portion thereof assigned or Transferred by RECP to any other Person) or that the Company will redeem all but not less than all of the Managing Member Interests (the "Call Transaction") for cash on the date specified in the Call Notice (the "Call Date"), which Call Date shall not be more than four months after the date of the Call Notice, provided that in no event shall the Call Date be less than three months prior to the Option Termination Date or the Extended Option Termination Date, as the case may be. RECP will have no obligation to contribute or loan funds to the Company in connection with effecting a Call Transaction, but shall cooperate reasonably and in good faith, but at no cost to RECP and without incurring any liability, with the effecting of a closing of such transaction (the Maguire Members' right to effect or cause a Call Transaction shall h▇▇▇▇▇▇▇ter be referred to as the "Call Option"). The Price payable for the Managing Member Interests upon the consummation of the Call Option shall be as described in Section 3.3. (b) On or before the date that is 90 days prior to the last date on which the Call Option may be exercised, the Maguire Members or either of them may deliver written notice (an "Ex▇▇▇▇▇▇▇ Notice") to RECP, on behalf of themselves or the Company, that they desire to extend the Option Termination Date by an additional 12 months (the "Extended Option Termination Date") subject to the satisfaction, as of such date (solely with respect to (ii), (iii) and (iv) below) and as of the Option Termination Date, of the following conditions: (i) an extension of the term of the New Subordinated Debt has been obtained for no less than one year; (ii) no Event of Default or Event of Acceleration has occurred and is continuing under the terms of the Existing Mortgage Debt, the New Subordinated Debt or any other material agreement (i.e., any contract or Space Lease which involves a payment of over $250,000) or any Major Lease (other than defaults caused by the act or omission of RECP that are not a Performance Default); (iii) no event causing a Trigger Event or Maguire Event of Default (as defined below) has occurred and is cont▇▇▇▇▇▇; (iv) RECP has received in cash a cumulative compounded monthly (to the extent not paid on a monthly basis) return of not less than 12% per annum on the remainder of the RECP Capital Contributions after the return to RECP of the Equity Reserve; provided that in calculating the 12% per annum return, there shall be excluded any distributions of the Equity Reserve which may be distributed to RECP; (v) the Maguire Members shall have purchased the Supplemental Cap and shall ▇▇▇▇ ▇▇llaterally assigned it to the Senior Mezzanine Lender and the Junior Mezzanine Lender in accordance with the terms and conditions of the New Subordinated Debt; (vi) the Maguire Members shall have paid in full all extension fees required ▇▇▇▇▇ ▇he terms of the New Subordinated Debt in order to extend the maturity of the New Subordinated Debt for a period of 1 year; (vii) on or prior to the delivery of the Extension Notice, the Maguire Members will have deposited in escrow, with a financial inst▇▇▇▇▇▇▇ designated by RECP and pursuant to an escrow agreement in form and substance satisfactory to RECP (which shall provide, without limitation, for the distribution of the Extension Escrow Amount as provided in Section 3.1(c) below) satisfactory to RECP, an amount equal to the sum of: (1) the difference between the amount described in paragraph (iv) herein and the amounts actually received by RECP as distributions from the Company as of date of the delivery of the Extension Notice; and (2) 150% of the amount required to (x) purchase the Supplemental Cap as of the date of the Extension Notice (except that the Maguire Members shall not be required to deposit such 150% of the co▇▇ ▇▇ ▇he Supplemental Cap if the Maguire Members provide evidence to RECP that they have purchased th▇ ▇▇▇▇▇emental Cap on or before the date of delivery of such Extension Notice) and (y) the corresponding extension fees, as described in paragraphs (v) and (vi) herein (such aggregate amount, the "Extension Escrow Amount"). RECP's determination of the Extension Escrow Amount shall be binding on the parties absent manifest error. Extension Escrow Amounts shall be released as determined by RECP in order to permit satisfaction of the conditions set forth in clauses (iv), (v) and (vi) on or before the Option Termination Date. In addition, on the date of the delivery of the Extension Notice, the Maguire Members will provide RECP with the documentation evidencing ▇▇▇ ▇▇▇osit of the amounts in escrow as provided herein (including, without limitation, the escrow agreement pursuant to which such funds are held in escrow, provided that RECP shall cooperate in good faith in approving the escrow agreement) and documenting the calculation of the amounts deposited in escrow; and (viii) receipt of certificates from the Maguire Members, in form and substance satisfactory to RECP, confirm▇▇▇ ▇▇▇t all the conditions set forth in clauses (ii) (iii), (vi) and (vii) above have been satisfied as of the date of the Extension Notice and that all conditions set forth in clauses (ii) through (vi) have been satisfied as of the Option Termination Date. If all of the foregoing conditions have been satisfied on the date set forth above, the period for exercise of the Call Option shall be extended from the Option Termination Date to the Extended Option Termination Date. The period from the Effective Date through the Option Termination Date, as the same may be so extended shall hereinafter be referred to as the "Redemption Period". For the avoidance of doubt, any reference to the "lapse" of the Call Option in this Agreement shall refer to the time at which the Call Option can no longer be exercised or consummated, as the case may be. (c) If at any time the Call Option is in effect the Maguire Members provide RECP with the Call Notice but do not consumm▇▇▇ ▇▇▇ Call Transaction on the Call Date, then, as of the close of business (New York City time) on the Call Date, (i) the Maguire Members will on demand pay all the costs and expenses incurr▇▇ ▇▇ ▇ECP in connection thereof; (ii) the Call Option shall, automatically and without any further action, lapse; (iii) a Trigger Event shall be deemed to have occurred; and (iv) any Extension Escrow Amount shall automatically, and without any further action, be transferred to RECP and shall be deemed a distribution in respect of its Managing Member Interest, provided, however, that the Maguire Members will have a one time right to delay the Call Date by ▇▇ ▇▇▇e than 30 days (provided that the Call Date shall in no event be later than the last date on which the Call Transaction could be closed as described in Section 3.1(a) above. (d) Notwithstanding the provisions of Section 3.1(a) above, in the event: (i)(x) the Maguire Members or any of their respective Affiliates have breached ▇▇ ▇▇▇ in default in respect of any representation, warranty or covenant under this Agreement or any Transaction Document to which they are a party after notice and lapse of any applicable cure periods if such exist (a "Maguire Event of Default"); (y) such Maguire Event of Default does n▇▇ ▇▇▇▇lt in an Event of Default or E▇▇▇▇ ▇▇ Acceleration under any of the Loan Documents; and (z) RECP notifies the Maguire Members of such Maguire Event of Default; or (ii) the death ▇▇ ▇▇▇▇bility of Maguire ▇▇▇ ▇▇e failure of the Maguire Members to appoint within 40 ▇▇▇▇ ▇▇y other person to perfor▇ ▇▇▇ ▇uties and responsibilities with respect to the Property, who is acceptable to RECP at its sole discretion, then subject to Section 3.1(a) above, the Maguire Members may only exercise their rights and effect a Call Opt▇▇▇ (▇▇ the right to effect a Call Option has not otherwise lapsed or expired and has not been suspended as provided herein) so long as the Call Date shall occur no later than three months after the date of either of the events described in (i) or (ii) above. (e) The Call Option shall immediately and without any further action lapse and be of no further force and effect subject to the provisions of this subsection (e): (i) upon the occurrence of a Maguire Event of Default that is or causes or otherwise results in a▇ ▇▇▇▇▇ of Default or Event of Acceleration under any Loan Documents; or, (ii) upon the occurrence of an Event of Default or Event of Acceleration under any of the Loan Documents as a result of or caused by any actions or inactions of or by the Maguire Members or their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default), unless with respect to each of (i) and (ii) the Maguire Members have obtained from the holder of the relevant Loan D▇▇▇▇▇▇▇s under which such Event(s) of Default has occurred within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration, a ▇▇▇▇▇▇▇ confirmation that such Person irrevocably waives such default or irrevocably agrees that it will not enforce its rights and remedies under such Loan Document with respect to such default (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions), in which case the Call Option shall automatically and without any further action be reinstated. (f) Unless it has previously lapsed or expired, the Call Option shall immediately and without any further action be suspended and may not be exercised at any time (the "Suspension Period") during the period in which: (X) (i) an Event of Default or Event of Acceleration has occurred and is continuing under any of the Loan Documents that is not attributable to a Maguire Event of Default or any action or inaction of the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default or Event of Acceleration) unless either: (1) such Event of Default or Event of Acceleration has been irrevocably waived in writing by the holder of the relevant Loan Document, or (2) the holder of the relevant Loan Document confirms in writing that it irrevocably agrees not to enforce its rights and remedies under such Loan Document with respect to such Event of Default or Event of Acceleration, in each case of (1) and (2) above within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions) or (ii) an Event of Default or Event of Acceleration has occurred under any of the Loan Documents and such Event of Default has been cured by RECP; (Y) such Event of Default or Event of Acceleration was not caused by RECP (it being understood and agreed that a Performance Default shall not be deemed an Event of Default or Event of Acceleration caused by RECP) unless (I) the Event of Default is a monetary default under the Loan Documents that has no cure period (other than upon maturity), (II) RECP has cured such default pursuant to the emergency provision of Section 7.3(c) of the Operating Agreement and (III) within 5 Business Days after the cure by RECP the Maguire Members reimburse RECP for all costs and expenses incurred i▇ ▇▇▇▇▇g such default plus interest thereon at the rate of 25% per annum; and (Z) RECP is attempting during such Suspension Period to sell or refinance the Property, or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary of the Company. Notwithstanding the foregoing, if a written forbearance agreement that provides for the suspension of remedies by the applicable lender under the relevant Loan Documents is entered into by the Company or the applicable Subsidiary (the period during which the exercise of such remedies is suspended being hereinafter referred to as the "Forbearance Period"), a Suspension Period will be ineffective and will not renew until the later of the date: (m) that is three (3) months prior to the expiration of the applicable Forbearance Period; and (n) on which RECP is attempting to sell or refinance the Property or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary of the Company (which RECP will confirm in a notice to the Maguire Members). In no event shall the occurrence and/or existence ▇▇ ▇▇▇ Suspension Period cause the Option Termination Date or the Extended Option Termination Date to be extended (as the case may be). (g) If an Event of Default or Event of Acceleration occurs under any of the Loan Documents at a time when the Call Option has not otherwise lapsed or expired, RECP will (i) in good faith attempt to obtain from the applicable lender a written forbearance agreement in form and substance reasonably satisfactory to RECP; and (ii) to the extent the Maguire Members are unaware of such Event of Default or Event of Acc▇▇▇▇▇▇▇on, give the Maguire Members notice of such Event of Default or Event of Accelera▇▇▇▇. ▇f RECP is unsuccessful in obtaining such a forbearance agreement from the applicable lender within 15 Business Days of the occurrence of such Event of Default or Event of Acceleration, the Maguire Members will be given an opportunity, for a period of 15 Bus▇▇▇▇▇ ▇ays, to obtain such a forbearance agreement (in form and substance reasonably satisfactory to RECP) from such lenders. It will be reasonable for RECP not to approve a forbearance agreement which (x) contemplates any economic change to the Existing Mortgage Loan or the New Subordinated Debt which has an adverse effect on RECP, including, without limitation, the requirement that default or penalty interest be paid during the Forbearance Period, unless it is paid or deposited in escrow with the Company by the Maguire Members at the time of obtaining such forbearance agreement, ▇▇ (▇) requires any adverse economic change to RECP's equity position.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Maguire Properties Inc)
Call Option. (a) At For the period from the Initial Closing Date until the date (the "Notice Deadline") which is the earlier of 394 days thereafter or the date that AIG Global Investment Group, Inc. ("AIGGIG") has transferred its direct or indirect ownership of any time no later Membership Interests to AIG Highstar Capital, L.P., any fund controlled by AIG Highstar ▇▇ ▇▇, L.P., or the successor fund to AIG Highstar Capital, L.P. whose general partner has the same managing director as the general partner of AIG Highstar Capital, L.P., if AIGGIG or any of its Affiliates desires to transfer, sell, assign, pledge, encumber, or otherwise directly dispose of all or any portion of its Membership Interest other than 6 months prior a Preferred Interest (an "Eligible Assignment") to any Person (other than an Affiliate of Highstar), Section 11.2 shall not be applicable and such Eligible Assignment shall be governed by this Section 11.3. In the third anniversary event that AIGGIG or any of its Affiliates desires to effect an Eligible Assignment, AIGGIG or its applicable Affiliates (the Effective Date "Assigning AIGGIG Member") shall first provide to DLJMB a written notice (the "Option Termination Date"), the Maguire Members or either of them may deliver written notice to RECP (▇▇▇ "Call Notice"), on behalf of themselves or the Company, that they elect to purchase all but not less than all of the Managing Member Interests (including for the purposes of this Section 3, any portion thereof assigned or Transferred by RECP to any other Person) or that the Company will redeem all but not less than all of the Managing Member Interests (the "Call Transaction") for cash on the date specified in the Call Notice (the "Call Date"), which Call Date shall not be more than four months after the date of the Call Notice, provided that in no event shall the Call Date be less than three months prior to the Option Termination Date or the Extended Option Termination Date, as the case may be. RECP will have no obligation to contribute or loan funds to the Company in connection with effecting a Call Transaction, but shall cooperate reasonably and in good faith, but at no cost to RECP and without incurring any liability, with the effecting of a closing of such transaction (the Maguire Members' right to effect or cause a Call Transaction shall h▇▇▇▇▇▇▇ter be referred to as the "Call Option"). The Price payable for the Managing Member Interests upon the consummation of the Call Option shall be as described in Section 3.3.
(b) On or before the date that is 90 days prior to the last date on which the Call Option may be exercised, the Maguire Members or either of them may deliver written notice (an "Ex▇▇▇▇▇▇▇ Notice") to RECP, on behalf of themselves or the Company, that they desire to extend the Option Termination Date by an additional 12 months (the "Extended Option Termination Date") subject to the satisfaction, as of such date (solely with respect to (ii), (iii) and (iv) below) and as of the Option Termination Date, of the following conditions:
(i) an extension of the term of the New Subordinated Debt has been obtained for no less than one year;
(ii) no Event of Default or Event of Acceleration has occurred and is continuing under the terms of the Existing Mortgage Debt, the New Subordinated Debt or any other material agreement (i.e., any contract or Space Lease which involves a payment of over $250,000) or any Major Lease (other than defaults caused by the act or omission of RECP that are not a Performance Default);
(iii) no event causing a Trigger Event or Maguire Event of Default (as defined below) has occurred and is cont▇▇▇▇▇▇;
(iv) RECP has received in cash a cumulative compounded monthly (to the extent not paid on a monthly basis) return of not less than 12% per annum on the remainder of the RECP Capital Contributions after the return to RECP of the Equity Reserve; provided that in calculating the 12% per annum return, there shall be excluded any distributions of the Equity Reserve which may be distributed to RECP;
(v) the Maguire Members shall have purchased the Supplemental Cap and shall ▇▇▇▇ ▇▇llaterally assigned it to the Senior Mezzanine Lender and the Junior Mezzanine Lender in accordance with the terms and conditions of the New Subordinated Debt;
(vi) the Maguire Members shall have paid in full all extension fees required ▇▇▇▇▇ ▇he terms of the New Subordinated Debt in order to extend the maturity of the New Subordinated Debt for a period of 1 year;
(vii) on or prior to the Notice Deadline that describes the Membership Interest the Assigning AIGGIG Member proposes to Assign. For a period of sixty (60) days after delivery of the Extension Notice, the Maguire Members will have deposited in escrow, with a financial inst▇▇▇▇▇▇▇ designated by RECP and pursuant to an escrow agreement in form and substance satisfactory to RECP (which shall provide, without limitation, for the distribution of the Extension Escrow Amount as provided in Section 3.1(c) below) satisfactory to RECP, an amount equal to the sum of: (1) the difference between the amount described in paragraph (iv) herein and the amounts actually received by RECP as distributions from the Company as of date of the delivery of the Extension Notice; and (2) 150% of the amount required to (x) purchase the Supplemental Cap as of the date of the Extension Option Notice (except that the Maguire Members shall not be required to deposit such 150% of the co▇▇ ▇▇ ▇he Supplemental Cap if the Maguire Members provide evidence to RECP that they have purchased th▇ ▇▇▇▇▇emental Cap on or before the date of delivery of such Extension Notice) and (y) the corresponding extension fees, as described in paragraphs (v) and (vi) herein (such aggregate amount, the "Extension Escrow Amount"). RECP's determination of the Extension Escrow Amount shall be binding on the parties absent manifest error. Extension Escrow Amounts shall be released as determined by RECP in order to permit satisfaction of the conditions set forth in clauses (iv), (v) and (vi) on or before the Option Termination Date. In addition, on the date of the delivery of the Extension Notice, the Maguire Members will provide RECP with the documentation evidencing ▇▇▇ ▇▇▇osit of the amounts in escrow as provided herein (including, without limitation, the escrow agreement pursuant to which such funds are held in escrow, provided that RECP shall cooperate in good faith in approving the escrow agreement) and documenting the calculation of the amounts deposited in escrow; and
(viii) receipt of certificates from the Maguire Members, in form and substance satisfactory to RECP, confirm▇▇▇ ▇▇▇t all the conditions set forth in clauses (ii) (iii), (vi) and (vii) above have been satisfied as of the date of the Extension Notice and that all conditions set forth in clauses (ii) through (vi) have been satisfied as of the Option Termination Date. If all of the foregoing conditions have been satisfied on the date set forth above, the period for exercise of the Call Option shall be extended from the Option Termination Date to the Extended Option Termination Date. The period from the Effective Date through the Option Termination Date, as the same may be so extended shall hereinafter be referred to as the "Redemption Period". For the avoidance of doubt, any reference to the "lapse" of the Call Option in this Agreement shall refer to the time at which the Call Option can no longer be exercised or consummated, as the case may be.
(c) If at any time the Call Option is in effect the Maguire Members provide RECP with the Call Notice but do not consumm▇▇▇ ▇▇▇ Call Transaction on the Call Date, then, as of the close of business (New York City time) on the Call Date, (i) the Maguire Members will on demand pay all the costs and expenses incurr▇▇ ▇▇ ▇ECP in connection thereof; (ii) the Call Option shall, automatically and without any further action, lapse; (iii) a Trigger Event shall be deemed to have occurred; and (iv) any Extension Escrow Amount shall automatically, and without any further action, be transferred to RECP and shall be deemed a distribution in respect of its Managing Member Interest, provided, however, that the Maguire Members will have a one time right to delay the Call Date by ▇▇ ▇▇▇e than 30 days (provided that the Call Date shall in no event be later than the last date on which the Call Transaction could be closed as described in Section 3.1(a) above.
(d) Notwithstanding the provisions of Section 3.1(a) above, in the event: (i)(x) the Maguire Members or any of their respective Affiliates have breached ▇▇ ▇▇▇ in default in respect of any representation, warranty or covenant under this Agreement or any Transaction Document to which they are a party after notice and lapse of any applicable cure periods if such exist (a "Maguire Event of Default"); (y) such Maguire Event of Default does n▇▇ ▇▇▇▇lt in an Event of Default or E▇▇▇▇ ▇▇ Acceleration under any of the Loan Documents; and (z) RECP notifies the Maguire Members of such Maguire Event of Default; or (ii) the death ▇▇ ▇▇▇▇bility of Maguire ▇▇▇ ▇▇e failure of the Maguire Members to appoint within 40 ▇▇▇▇ ▇▇y other person to perfor▇ ▇▇▇ ▇uties and responsibilities with respect to the Property, who is acceptable to RECP at its sole discretion, then subject to Section 3.1(a) above, the Maguire Members may only exercise their rights and effect a Call Opt▇▇▇ (▇▇ the right to effect a Call Option has not otherwise lapsed or expired and has not been suspended as provided herein) so long as the Call Date shall occur no later than three months after the date of either of the events described in (i) or (ii) above.
(e) The Call Option shall immediately and without any further action lapse and be of no further force and effect subject to the provisions of this subsection (e): (i) upon the occurrence of a Maguire Event of Default that is or causes or otherwise results in a▇ ▇▇▇▇▇ of Default or Event of Acceleration under any Loan Documents; or, (ii) upon the occurrence of an Event of Default or Event of Acceleration under any of the Loan Documents as a result of or caused by any actions or inactions of or by the Maguire Members or their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default), unless with respect to each of (i) and (ii) the Maguire Members have obtained from the holder of the relevant Loan D▇▇▇▇▇▇▇s under which such Event(s) of Default has occurred within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration, a ▇▇▇▇▇▇▇ confirmation that such Person irrevocably waives such default or irrevocably agrees that it will not enforce its rights and remedies under such Loan Document with respect to such default (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions), in which case the Call Option shall automatically and without any further action be reinstated.
(f) Unless it has previously lapsed or expired, the Call Option shall immediately and without any further action be suspended and may not be exercised at any time (the "Suspension Period") during the period in which: (X) (i) an Event of Default or Event of Acceleration has occurred and is continuing under any of the Loan Documents that is not attributable to a Maguire Event of Default or any action or inaction of the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default or Event of Acceleration) unless either: (1) such Event of Default or Event of Acceleration has been irrevocably waived in writing by the holder of the relevant Loan Document, or (2) the holder of the relevant Loan Document confirms in writing that it irrevocably agrees not to enforce its rights and remedies under such Loan Document with respect to such Event of Default or Event of Acceleration, in each case of (1) and (2) above within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions) or (ii) an Event of Default or Event of Acceleration has occurred under any of the Loan Documents and such Event of Default has been cured by RECP; (Y) such Event of Default or Event of Acceleration was not caused by RECP (it being understood and agreed that a Performance Default shall not be deemed an Event of Default or Event of Acceleration caused by RECP) unless (I) the Event of Default is a monetary default under the Loan Documents that has no cure period (other than upon maturity), (II) RECP has cured such default pursuant to the emergency provision of Section 7.3(c) of the Operating Agreement and (III) within 5 Business Days after the cure by RECP the Maguire Members reimburse RECP for all costs and expenses incurred i▇ ▇▇▇▇▇g such default plus interest thereon at the rate of 25% per annum; and (Z) RECP is attempting during such Suspension Period to sell or refinance the Property, or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary of the Company. Notwithstanding the foregoing, if a written forbearance agreement that provides for the suspension of remedies by the applicable lender under the relevant Loan Documents is entered into by the Company or the applicable Subsidiary (the period during which the exercise of such remedies is suspended being hereinafter referred to as the "Forbearance First Option Period"), a Suspension Period will be ineffective DLJMB or its designee or designees shall have the exclusive right and will not renew until option (the later "First Option Right"), by giving written notice of the date: exercise of such right and option to the Assigning AIGGIG Member, all other Members (mwho are not Affiliates of the Assigning AIGGIG Member), and the Company, to purchase all, but not less than all, of the Membership Interest described in the Option Notice, upon the same terms and conditions set forth in the Option Notice for the price determined as set forth in Part I of Schedule 11.3 hereto.
(b) If DLJMB is unwilling to purchase the entire offered Membership Interest, the Assigning AIGGIG Member may treat the entire Membership Interest that is three (3) months the subject of the Option Notice as not subscribed, in which case such Membership Interest may be Assigned as set forth below. If, prior to the expiration of the applicable Forbearance Option Period, DLJMB has not provided written notice of its election to purchase all of the Membership Interest described in the Option Notice, then the Assigning AIGGIG Member may, subject to Sections 11.1(b) and 11.1(c), at any time during the applicable Call Option Sale Period, Assign all, but not less than all, of the Membership Interest described in the Option Notice to any Person for a price and upon terms and conditions as the Assigning AIGGIG Member may determine. If the Assigning AIGGIG Member fails to consummate the sale of all of the Membership Interest described in the Option Notice prior to the expiration of the First Call Option Sale Period, then for a period of sixty (60) days after expiration of the First Call Option Sale Period (such period hereinafter referred to as the "Second Option Period"), DLJMB or its designee or designees shall have the exclusive right and option (the "Second Option Right"), by giving written notice of the exercise of such right and option to the Assigning AIGGIG Member, all other Members (who are not Affiliates of the Assigning AIGGIG Member), and the Company, to purchase all, but not less than all, of the Membership Interest described in the Option Notice, upon the same terms and conditions set forth in the Option Notice other than the price which shall be the Second Option Right Purchase Price. If the Assigning AIGGIG Member fails to consummate the sale of all of the Membership Interest described in the Option Notice prior to the expiration of the Second Call Option Sale Period, then for a period of sixty (60) days after expiration of the Second Call Option Sale Period (such period hereinafter referred to as the "Third Option Period"), DLJMB or its designee or designees shall have the exclusive right and option (the "Third Option Right"), by giving written notice of the exercise of such right and option to the Assigning AIGGIG Member, all other Members (who are not Affiliates of the Assigning AIGGIG Member), and the Company, to purchase all, but not less than all, of the Membership Interest described in the Option Notice, upon the same terms and conditions set forth in the Option Notice other than the price which shall be the Third Option Right Purchase Price. If the Assigning AIGGIG Member fails to consummate the sale of all of the Membership Interest described in the Option Notice prior to the expiration of the Third Call Option Sale Period, then Section 11.2 shall become effective and no sale or other transfer of such Membership Interest may be made thereafter by the Assigning AIGGIG Member without complying with Section 11.2. Notwithstanding the foregoing provisions of this Section 11.3, AIGGIG or its Affiliates may pledge or grant a security interest in all or a portion of its Membership Interest to a third party non-Affiliate in connection with a bona fide financing (or to a third party non-Affiliate in connection with one or more bona fide refinancings thereof); provided, however, that any subsequent Transfer of a Membership Interest so pledged or in which a security interest is so granted, whether pursuant to a foreclosure or otherwise, shall constitute an Assignment and give rise to an Option Right.
(nc) If, prior to the end of the applicable Option Period, DLJMB has provided notice of its election to acquire the entire Membership Interest that is the subject of the Option Notice, then DLJMB shall be obligated to acquire such Membership Interest on which RECP is attempting the terms described in Section 11.3(a) with respect to sell the First Option Right or refinance on the Property terms described in Section 11.3(b) with respect to the Second Option Right or any Subsidiary the Third Option Right. The closing of the purchase and sale of such Membership Interest pursuant to this Section 11.3 shall be held at the principal office of the Company at 10:00 a.m., local time, on or before the later to occur of sixty (60) days after the expiration of the applicable Option Period, or, if all requisite governmental and regulatory approvals have not been obtained by such date, the Regulatory Approval Date, or at such other time and place as the parties to the transaction may agree. At such closing, the Assigning AIGGIG Member shall deliver, one or more assignment agreements transferring such Membership Interest to DLJMB or its designee(s), as applicable, in a form reasonably satisfactory to DLJMB, and accompanied by all requisite transfer taxes, if any, and such Membership Interest shall be free and clear of any liens, claims or encumbrances (other than restrictions imposed by this LLC Agreement and pursuant to applicable federal, state and foreign securities laws) and the Assigning AIGGIG Member shall so represent and warrant, and further represent and warrant that it is the record and beneficial owner of such Membership Interest. DLJMB or its designee(s), as applicable, shall deliver at such closing (1) by certified or official bank check or by wire transfer of immediately available funds, payment in full for such Membership Interest, (2) the Backup Letter of Credit provided by Highstar, or the original Backup Guarantees together with a written statement from the Issuer acknowledging that the Backup Guarantees have been terminated, as applicable. If DLJMB or its designee(s), as applicable, defaults in its obligation to make payment of its purchase price, fails to return the original Backup Guarantees with the required Issuer acknowledgment or otherwise recapitalize fails to perform its agreement to acquire the Membership Interest that is the subject of the Option Notice, then the Assigning AIGGIG Member may, in its sole discretion, complete the sale of such Membership Interest to any Person for a price and upon terms and conditions as the Assigning AIGGIG Member may determine.
(d) In the event AIGGIG or its Affiliates is subject to Regulatory Restrictions at the time an Assigning AIGGIG Member provides an Option Notice, such Member shall be permitted to assign its rights and remedies under Section 11.3(a)-(c) to any other Person in order to comply with such Regulatory Restrictions; provided, however, that the exercise of such rights by the assignee will not cause an Adverse QF Event or an Adverse PUHCA Event for the Company or any Subsidiary of the Company (which RECP will confirm in a notice to the Maguire Members). In no event shall the occurrence and/or existence ▇▇ ▇▇▇ Suspension Period cause the Option Termination Date or the Extended Option Termination Date to be extended (as the case may be)Member.
(ge) If Notwithstanding Sections 11.3(a)-(c) (but subject to Sections 11.1(b) and 11.1(c)), at any time AIGGIG or its Affiliates may Assign all or any portion of its Membership Interest to an Event of Default or Event of Acceleration occurs under any of the Loan Documents at a time when the Call Option has not otherwise lapsed or expired, RECP will (i) in good faith attempt to obtain from the applicable lender a written forbearance agreement in form and substance reasonably satisfactory to RECP; and (ii) to the extent the Maguire Members are unaware Affiliate of such Member without complying with Sections 11.3(a)-(c); provided, however, that any such Assignment to an Affiliate does not result in an Adverse PUHCA Event or an Adverse QF Event. Notice of Default or Event of Acc▇▇▇▇▇▇▇on, give any Assignment permitted under this Section 11.3(e) shall be given by the Maguire Members notice of such Event of Default or Event of Accelera▇▇▇▇. ▇f RECP is unsuccessful in obtaining such a forbearance agreement from Assigning AIGGIG Member effecting the applicable lender within 15 Assignment to each other Member at least five Business Days of the occurrence of prior to such Event of Default or Event of Acceleration, the Maguire Members will be given an opportunity, for a period of 15 Bus▇▇▇▇▇ ▇ays, to obtain such a forbearance agreement (in form and substance reasonably satisfactory to RECP) from such lenders. It will be reasonable for RECP not to approve a forbearance agreement which (x) contemplates any economic change to the Existing Mortgage Loan or the New Subordinated Debt which has an adverse effect on RECP, including, without limitation, the requirement that default or penalty interest be paid during the Forbearance Period, unless it is paid or deposited in escrow with the Company by the Maguire Members at the time of obtaining such forbearance agreement, ▇▇ (▇) requires any adverse economic change to RECP's equity positionAssignment.
Appears in 1 contract
Sources: Limited Liability Company Agreement (MSW Energy Hudson LLC)
Call Option. (a) At any time no later than 6 months prior The Family Group irrevocably promises to the third anniversary Quiksilver that it shall sell, at Quiksilver's request, all of the Effective Date Family Group Shares (the "Option Termination DateCALL OPTION"), in accordance with the Maguire Members or either of them may deliver written notice to RECP (▇▇▇ "Call Notice"), on behalf of themselves or the Company, that they elect to purchase all but not less than all of the Managing Member Interests (including for the purposes terms of this Section 3, any portion thereof assigned or Transferred by RECP to any other Person) or that the Company will redeem all but not less than all of the Managing Member Interests (the "Call Transaction") for cash on the date specified in the Call Notice (the "Call Date"), which Call Date shall not be more than four months after the date of the Call Notice, provided that in no event shall the Call Date be less than three months prior to the Option Termination Date or the Extended Option Termination Date, as the case may be. RECP will have no obligation to contribute or loan funds to the Company in connection with effecting a Call Transaction, but shall cooperate reasonably and in good faith, but at no cost to RECP and without incurring any liability, with the effecting of a closing of such transaction (the Maguire Members' right to effect or cause a Call Transaction shall h▇▇▇▇▇▇▇ter be referred to as the "Call Option"). The Price payable for the Managing Member Interests upon the consummation of the Call Option shall be as described in Section 3.3Article 5.3.
(b) On The Call Option thus granted may be exercised by Quiksilver (i) in the event of a continued failure by any Member of the Family Group to perform any of her/his obligations under this Agreement or before under the Pledge of the Family Group Shares; (ii) in the event of the death or the incapacity of all of the individual Members of the Family Group; (iii) if, as a result of proceedings initiated by any Member of the Family Group, a tribunal or court of arbitration questions either the validity of the restrictions imposed on the voting rights associated with the Family Group Shares or the validity or the enforceability of the Family Group's obligations under this Agreement; (iv) in the event of a Notice of Put pursuant to Article 5.2(d); and (v) as of the expiration date of a five-year (5-year) period starting on the date that is 90 days prior to the last date on which the Call Option may be exercised, the Maguire Members or either of them may deliver written notice (an "Ex▇▇▇▇▇▇▇ Notice") to RECP, on behalf of themselves or the Company, that they desire to extend the Option Termination Date by an additional 12 months this Agreement (the "Extended Option Termination Date") subject to the satisfactionCALL OPTION EXERCISE DATE" and, as of such date together with events listed in (solely with respect to i), (ii), (iii) ), and (iv) belowhereinabove, a "CALL OPTION EVENT").
(c) Quiksilver may only exercise the Call Option once and as only for all of the Family Group Shares (and not for a portion of them) at any time during the period beginning on the occurrence of a Call Option Termination Event and ending on the date that no Call Option Event is continuing. If the relevant Call Option Event is the occurrence of the Call Option Exercise Date, of the following conditions:
Call Option may be exercised at any time after the Call Option Exercise Date and no later than ninety (90) days after that date. The Call Option shall become null and void if it has not been previously exercised, (i) an extension of the term of the New Subordinated Debt has been obtained for no less than one year;
(ii) no Event of Default or Event of Acceleration has occurred and is continuing under the terms of the Existing Mortgage Debt, the New Subordinated Debt or any other material agreement (i.e., any contract or Space Lease which involves a payment of over $250,000) or any Major Lease (other than defaults caused by the act or omission of RECP that are not a Performance Default);
(iii) no event causing a Trigger Event or Maguire Event of Default (as defined below) has occurred and is cont▇▇▇▇▇▇;
(iv) RECP has received in cash a cumulative compounded monthly (to the extent not paid on a monthly basis) return of not less than 12% per annum on the remainder of the RECP Capital Contributions after the return to RECP of the Equity Reserve; provided that in calculating the 12% per annum return, there shall be excluded any distributions of the Equity Reserve which may be distributed to RECP;
(v) the Maguire Members shall have purchased the Supplemental Cap and shall ▇▇▇▇ ▇▇llaterally assigned it to the Senior Mezzanine Lender and the Junior Mezzanine Lender in accordance with the terms and conditions of the New Subordinated Debt;
(vi) the Maguire Members shall have paid in full all extension fees required ▇▇▇▇▇ ▇he terms of the New Subordinated Debt in order to extend the maturity of the New Subordinated Debt for a period of 1 year;
(vii) on or prior to the delivery of the Extension Notice, the Maguire Members will have deposited in escrow, with a financial inst▇▇▇▇▇▇▇ designated by RECP and pursuant to an escrow agreement in form and substance satisfactory to RECP (which shall provide, without limitation, for the distribution of the Extension Escrow Amount as provided in Section 3.1(c) below) satisfactory to RECP, an amount equal to the sum of: (1) the difference between the amount described in paragraph (iv) herein and the amounts actually received by RECP as distributions from the Company as of date of the delivery of the Extension Notice; and (2) 150% of the amount required to (x) purchase the Supplemental Cap as of the date of the Extension Notice (except that the Maguire Members shall not be required to deposit such 150% of the co▇▇ ▇▇ ▇he Supplemental Cap if the Maguire Members provide evidence to RECP that they have purchased th▇ ▇▇▇▇▇emental Cap on or before the date of delivery of such Extension Notice) and (y) the corresponding extension fees, as described in paragraphs (v) and (vi) herein (such aggregate amount, the "Extension Escrow Amount"). RECP's determination of the Extension Escrow Amount shall be binding on the parties absent manifest error. Extension Escrow Amounts shall be released as determined by RECP in order to permit satisfaction of the conditions set forth in clauses (iv), (v) and (vi) on or before the Option Termination Date. In addition, on the date of the delivery Notice of the Extension NoticePut, the Maguire Members will provide RECP with the documentation evidencing ▇▇▇ ▇▇▇osit of the amounts in escrow as provided herein (including, without limitation, the escrow agreement pursuant to which such funds are held in escrow, provided that RECP shall cooperate in good faith in approving the escrow agreement) and documenting the calculation of the amounts deposited in escrow; and
(viii) receipt of certificates from the Maguire Members, in form and substance satisfactory to RECP, confirm▇▇▇ ▇▇▇t all the conditions set forth in clauses or (ii) (iii), (vi) and (vii) above have been satisfied as at the end of the date of the Extension Notice and that all conditions set forth in clauses ninety-day (ii90-day) through (vi) have been satisfied as of the Option Termination Date. If all of the foregoing conditions have been satisfied on the date set forth above, the period for exercise of the Call Option shall be extended from the Option Termination Date to the Extended Option Termination Date. The period from the Effective Date through the Option Termination Date, as the same may be so extended shall hereinafter be referred to as the "Redemption Period". For the avoidance of doubt, any reference to the "lapse" of the Call Option in this Agreement shall refer to the time at which the Call Option can no longer be exercised or consummated, as the case may be.
(c) If at any time the Call Option is in effect the Maguire Members provide RECP with the Call Notice but do not consumm▇▇▇ ▇▇▇ Call Transaction on the Call Date, then, as of the close of business (New York City time) on the Call Date, (i) the Maguire Members will on demand pay all the costs and expenses incurr▇▇ ▇▇ ▇ECP in connection thereof; (ii) the Call Option shall, automatically and without any further action, lapse; (iii) a Trigger Event shall be deemed to have occurred; and (iv) any Extension Escrow Amount shall automatically, and without any further action, be transferred to RECP and shall be deemed a distribution in respect of its Managing Member Interest, provided, however, that the Maguire Members will have a one time right to delay the Call Date by ▇▇ ▇▇▇e than 30 days (provided that the Call Date shall in no event be later than the last date on which the Call Transaction could be closed as described in Section 3.1(a) abovehereinabove.
(d) Notwithstanding If Quiksilver wishes to exercise the provisions Call Option, it shall notify the Family Group of Section 3.1(aits intent to do so (the "NOTICE OF CALL") above, during the applicable exercise period in the event: (i)(x) form set forth in Article 7.5(a). The Notice of Call shall specify the Maguire Members or any of their respective Affiliates have breached ▇▇ ▇▇▇ in default in respect of any representation, warranty or covenant under this Agreement or any Transaction Document to which they are a party after notice and lapse of any applicable cure periods if such exist (a "Maguire Event of Default"); (y) such Maguire Event of Default does n▇▇ ▇▇▇▇lt in an Event of Default or E▇▇▇▇ ▇▇ Acceleration under any Exercise Price of the Loan Documents; and Call Option. It shall constitute an irrevocable commitment on the part of Quiksilver to acquire (zor to cause any entity designated by Quicksilver to acquire) RECP notifies the Maguire Members of such Maguire Event of Default; or (ii) the death ▇▇ ▇▇▇▇bility of Maguire ▇▇▇ ▇▇e failure all of the Maguire Members Family Group Shares, which the Family Group irrevocably undertakes to appoint within 40 ▇▇▇▇ ▇▇y other person to perfor▇ ▇▇▇ ▇uties and responsibilities with respect to the Property, who is acceptable to RECP at its sole discretion, then subject to Section 3.1(a) above, the Maguire Members may only exercise their rights and effect a Call Opt▇▇▇ (▇▇ the right to effect a Call Option has not otherwise lapsed or expired and has not been suspended as provided herein) so long as the Call Date shall occur no later than three months after the date of either of the events described in (i) or (ii) abovesell.
(e) The Call Option shall immediately and without any further action lapse and be of no further force and effect subject to In the provisions of this subsection (e): (i) upon the occurrence event of a Maguire Event Notice of Default that is or causes or otherwise results in a▇ ▇▇▇▇▇ of Default or Event of Acceleration under any Loan Documents; orCall, the Family Group shall sell the Family Group Shares to Quiksilver, who shall acquire them from the Family Group, within thirty (ii30) upon days from the occurrence of an Event of Default or Event of Acceleration under any receipt of the Loan Documents as a result Notice of or caused by any actions or inactions of or by Call, at the Maguire Members or their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default), unless with respect to each of (i) and (ii) the Maguire Members have obtained from the holder Exercise Price of the relevant Loan D▇▇▇▇▇▇▇s under which such Event(s) of Default has occurred within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration, a ▇▇▇▇▇▇▇ confirmation that such Person irrevocably waives such default or irrevocably agrees that it will not enforce its rights and remedies under such Loan Document with respect to such default (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions), in which case the Call Option shall automatically and without any further action be reinstatedOption.
(f) Unless it has previously lapsed or expired, the Call Option shall immediately and without any further action be suspended and may not be exercised at any time (the "Suspension Period") during the period in which: (X) (i) an Event of Default or Event of Acceleration has occurred and is continuing under any of the Loan Documents that is not attributable to a Maguire Event of Default or any action or inaction of the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default or Event of Acceleration) unless either: (1) such Event of Default or Event of Acceleration has been irrevocably waived in writing by the holder of the relevant Loan Document, or (2) the holder of the relevant Loan Document confirms in writing that it irrevocably agrees not to enforce its rights and remedies under such Loan Document with respect to such Event of Default or Event of Acceleration, in each case of (1) and (2) above within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions) or (ii) an Event of Default or Event of Acceleration has occurred under any of the Loan Documents and such Event of Default has been cured by RECP; (Y) such Event of Default or Event of Acceleration was not caused by RECP (it being understood and agreed that a Performance Default shall not be deemed an Event of Default or Event of Acceleration caused by RECP) unless (I) the Event of Default is a monetary default under the Loan Documents that has no cure period (other than upon maturity), (II) RECP has cured such default pursuant to the emergency provision of Section 7.3(c) of the Operating Agreement and (III) within 5 Business Days after the cure by RECP the Maguire Members reimburse RECP for all costs and expenses incurred i▇ ▇▇▇▇▇g such default plus interest thereon at the rate of 25% per annum; and (Z) RECP is attempting during such Suspension Period to sell or refinance the Property, or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary of the Company. Notwithstanding the foregoing, if a written forbearance agreement that provides for the suspension of remedies by the applicable lender under the relevant Loan Documents is entered into by the Company or the applicable Subsidiary (the period during which the exercise of such remedies is suspended being hereinafter referred to as the "Forbearance Period"), a Suspension Period will be ineffective and will not renew until the later of the date: (m) that is three (3) months prior to the expiration of the applicable Forbearance Period; and (n) on which RECP is attempting to sell or refinance the Property or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary of the Company (which RECP will confirm in a notice to the Maguire Members). In no event shall the occurrence and/or existence ▇▇ ▇▇▇ Suspension Period cause the Option Termination Date or the Extended Option Termination Date to be extended (as the case may be).
(g) If an Event of Default or Event of Acceleration occurs under any of the Loan Documents at a time when the Call Option has not otherwise lapsed or expired, RECP will (i) in good faith attempt to obtain from the applicable lender a written forbearance agreement in form and substance reasonably satisfactory to RECP; and (ii) to the extent the Maguire Members are unaware of such Event of Default or Event of Acc▇▇▇▇▇▇▇on, give the Maguire Members notice of such Event of Default or Event of Accelera▇▇▇▇. ▇f RECP is unsuccessful in obtaining such a forbearance agreement from the applicable lender within 15 Business Days of the occurrence of such Event of Default or Event of Acceleration, the Maguire Members will be given an opportunity, for a period of 15 Bus▇▇▇▇▇ ▇ays, to obtain such a forbearance agreement (in form and substance reasonably satisfactory to RECP) from such lenders. It will be reasonable for RECP not to approve a forbearance agreement which (x) contemplates any economic change to the Existing Mortgage Loan or the New Subordinated Debt which has an adverse effect on RECP, including, without limitation, the requirement that default or penalty interest be paid during the Forbearance Period, unless it is paid or deposited in escrow with the Company by the Maguire Members at the time of obtaining such forbearance agreement, ▇▇ (▇) requires any adverse economic change to RECP's equity position.
Appears in 1 contract
Call Option. 11.1 After an initial standstill period until January 30, 2020, IMI shall have the right (a“Call Option”) At any to require that all Shares held by ▇▇. ▇▇▇▇▇▇▇ (or his successor in interest) in the Company at such time no later than 6 months (hereinafter the “Option Shares”) are sold and transferred to IMI if and when the service agreement between the Company or VIA optronics GmbH and ▇▇. ▇▇▇▇▇▇▇ (as amended from time to time) terminates (by termination for cause, by expiration or otherwise) (“Triggering Event”).
11.2 If ▇▇. ▇▇▇▇▇▇▇ ceases to be a managing director of VIA optronics GmbH or a member of the Management Board of the Company and becomes a member of the Company’s Supervisory Board instead, the Parties — prior to the third anniversary ▇▇. ▇▇▇▇▇▇▇ ceasing to be a managing director of VIA optronics GmbH or a member of the Effective Date Management Board — shall jointly consider whether to extend the Call Option and the Exit Put Option. The Call Option and the Exit Put Option shall, however, have the same term (i.e. if the "term for the Call Option Termination Date"is extended this is automatically deemed an equivalent extension of the term of the Exit Put Option), the Maguire Members or either .
11.3 The Call Option shall be exercised by way of them may deliver written notice to RECP (▇▇. ▇▇▇▇▇▇▇ "(or if applicable his successor in interest) (“Call Exercise Notice"”). Such Call Exercise Notice must be received within a period of six (6) months (i) after the Triggering Event occurred or (ii) January 30, 2020, whichever is later. If the Call Exercise Notice has not been received within this period, it lapses.
11.4 Notwithstanding the forgoing, IMI shall be entitled (but not required) to exercise the Call Option prior to January 30, 2020 if the service agreement between the Company and ▇▇. ▇▇▇▇▇▇▇ or between VIA optronics GmbH and ▇▇. ▇▇▇▇▇▇▇ has been terminated for good cause. In this case, the period during which IMI shall be entitled to exercise the Call Option shall be the time period between the termination for good cause becoming effective and June 30, 2020.
11.5 Upon timely receipt of the Call Exercise Notice, the Parties shall in good faith discuss and mutually agree the fair value of the Company as a whole and based on behalf the ownership percentage which the Option Shares reflect in the total capital of themselves or the Company, that they elect to purchase all but not less than all the resulting fair value of the Managing Member Interests Option Shares. The fair value as so agreed shall be the “Option Price”.
11.6 If the Parties fail to reach such mutual agreement on the Option Price (including or a process how to determine the Option Price) within six (6) weeks after the Call Exercise Notice has been received, either of the parties shall be entitled to apply to the Institute of Chartered Accountants in Germany (Institut der Wirtschaftsprüfer in Deutschland e. V.) to appoint an auditor to act as an expert (Schiedsgutachter) to determine the fair market value of the Company. The auditor so appointed (“Expert”) shall determine such fair market value of the Company and the resulting fair value of the Option Shares (representing to ownership percentage which the Option Shares reflect in the total capital of the Company) acting as an expert arbitrator within the meaning of Section 317 BGB. The Parties shall take all such steps as are reasonably required by the Expert so that the Expert accepts its appointment as contemplated hereunder and shall, in particular, agree to the terms of reference and agree to pay the compensation for the purposes Expert’s engagement, as reasonably requested by the Expert. Each of this Section 3, any portion thereof assigned or Transferred by RECP to any other Person) or the parties shall co-operate and procure that the Company will redeem all but not less than all co-operates with the Expert by providing the Expert with such information about the Group’s business as the Expert reasonably requests. The Expert shall grant to each of the Managing Member Interests (parties the "Call Transaction") opportunity to state their respective views as to the proper valuation of the Company. In determining the fair value of the Company the Expert shall apply the valuation method which such Expert deems appropriate to assess the price a willing buyer would be prepared to pay for cash the acquisition of the Company. The fair value of the Option Shares as so determined by the Expert shall then be the Option Price. The Expert shall also decide on the date specified distribution of costs of its engagement applying the principles of Section 90, 91 German Civil Process Code (Zivilprozessordnung — ZPO) taking into account the respective positions the parties have taken in respect of the valuation of the Company.
11.7 Upon the determination of the Option Price in accordance with Sections 11.5 or 11.6 above the Parties shall document the sale and transfer of the Option Shares by executing the agreement as attached as Exhibit 11.7 (as appropriately completed). The Parties remain free to amend Exhibit 11.7 as mutually agreed and, if so agreed, they may in particular provide for payment of the Option Price in shares of IMI’s parent company.
11.8 IMI welcomes and acknowledges the request of ▇▇. ▇▇▇▇▇▇▇ to potentially convert the Option Shares into shares in IMI’s ultimate parent company, ▇▇▇▇▇ Corporation. For practical and legal reasons, such conversion is very unlikely to be possible by way of a direct exchange of shares but can instead likely be achieved by ▇▇. ▇▇▇▇▇▇▇ using the proceeds of the sale of the Option Shares to acquire shares in ▇▇▇▇▇ Corporation in the Call Notice (open market. IMI will provide ▇▇. ▇▇▇▇▇▇▇ with such assistance as IMI is reasonably able to provide in the "Call Date")context of such transaction, it being understood that its ability to do so is limited.
11.9 If the existing service agreement of ▇▇. ▇▇▇▇▇▇▇ with the Company or with Via optronics GmbH is not extended beyond January 1, 2020 and if such non-extension was caused by the Company failing to make an offer to ▇▇. ▇▇▇▇▇▇▇ for an extension of the contract which Call Date provided for a compensation package which was not materially worse than the compensation package ▇▇. ▇▇▇▇▇▇▇ was entitled to at the time the service agreement expired, ▇▇. ▇▇▇▇▇▇▇ shall not be more than four months after entitled to extend the date standstill period for the exercise of the Call NoticeOption and the Exit Put Option from January 30, provided that in no event 2020 to December 31, 2022. Such extension shall the Call Date be less than three months prior to the Option Termination Date or the Extended Option Termination Date, as the case may berequire a written notice by ▇▇. RECP will have no obligation to contribute or loan funds to the Company in connection with effecting a Call Transaction, but shall cooperate reasonably and in good faith, but at no cost to RECP and without incurring any liability, with the effecting of a closing of such transaction (the Maguire Members' right to effect or cause a Call Transaction shall h▇▇▇▇▇▇▇ter be referred to as the "Call Option"). The Price payable for the Managing Member Interests upon the consummation of the Call Option shall be as described in Section 3.3.
(b) On or before the date that is 90 days prior to the last date on which the Call Option may be exercised, the Maguire Members or either of them may deliver such written notice (an "Exi) to unequivocally exercising his rights under this Section 11.9 and (ii) to be issued within four (4) weeks after the earlier of (x) the Supervisory Board notifying ▇▇. ▇▇▇▇▇▇▇ Notice") to RECP, on behalf in writing that his service agreement will not be extended and advising him of themselves or the Company, that they desire to extend the Option Termination Date by an additional 12 months (the "Extended Option Termination Date") subject to the satisfaction, as of such date (solely with respect to (ii), (iii) his rights under this Section 11.9 and (ivy) below) and as of the Option Termination DateJanuary 1, of the following conditions:
(i) an extension of the term of the New Subordinated Debt has been obtained for no less than one year;
(ii) no Event of Default or Event of Acceleration has occurred and is continuing under the terms of the Existing Mortgage Debt, the New Subordinated Debt or any other material agreement (i.e., any contract or Space Lease which involves a payment of over $250,000) or any Major Lease (other than defaults caused by the act or omission of RECP that are not a Performance Default);
(iii) no event causing a Trigger Event or Maguire Event of Default (as defined below) has occurred and is cont2020. Should ▇▇▇▇▇▇;
(iv) RECP has received in cash a cumulative compounded monthly (to the extent not paid on a monthly basis) return of not less than 12% per annum on the remainder of the RECP Capital Contributions after the return to RECP of the Equity Reserve; provided that in calculating the 12% per annum return, there shall be excluded any distributions of the Equity Reserve which may be distributed to RECP;
(v) the Maguire Members shall have purchased the Supplemental Cap and shall ▇▇▇▇ ▇▇llaterally assigned it to the Senior Mezzanine Lender and the Junior Mezzanine Lender in accordance with the terms and conditions of the New Subordinated Debt;
(vi) the Maguire Members shall have paid in full all extension fees required ▇▇▇▇▇ ▇he terms of the New Subordinated Debt in order to extend the maturity of the New Subordinated Debt for a period of 1 year;
(vii) on or prior to the delivery of the Extension Notice, the Maguire Members will have deposited in escrow, with a financial inst. ▇▇▇▇▇▇▇ designated by RECP and pursuant to an escrow agreement in form and substance satisfactory to RECP (which shall provide, without limitation, for the distribution of the Extension Escrow Amount as provided in Section 3.1(c) below) satisfactory to RECP, an amount equal to the sum of: (1) the difference between the amount described in paragraph (iv) herein and the amounts actually received by RECP as distributions from the Company as of date of the delivery of the Extension Notice; and (2) 150% of the amount required to (x) purchase the Supplemental Cap as of the date of the Extension Notice (except that the Maguire Members shall not be required to deposit such 150% of the co▇▇ ▇▇ ▇he Supplemental Cap if the Maguire Members provide evidence to RECP that they have purchased th▇ ▇▇▇▇▇emental Cap on or before the date of delivery of such Extension Notice) and (y) the corresponding extension fees, as described in paragraphs (v) and (vi) herein (such aggregate amountexercise this right, the "Extension Escrow Amount"). RECP's determination of the Extension Escrow Amount shall be binding on the parties absent manifest error. Extension Escrow Amounts shall be released as determined references in Sections 11.1, 11.3, 11.4 and 12.1, 12.2 and 12.3 to January 30, 2020, are replaced by RECP in order to permit satisfaction of the conditions set forth in clauses (iv), (v) and (vi) on or before the Option Termination Date. In addition, on the date of the delivery of the Extension Notice, the Maguire Members will provide RECP with the documentation evidencing ▇▇▇ ▇▇▇osit of the amounts in escrow as provided herein (including, without limitation, the escrow agreement pursuant to which such funds are held in escrow, provided that RECP shall cooperate in good faith in approving the escrow agreement) and documenting the calculation of the amounts deposited in escrow; and
(viii) receipt of certificates from the Maguire Members, in form and substance satisfactory to RECP, confirm▇▇▇ ▇▇▇t all the conditions set forth in clauses (ii) (iii), (vi) and (vii) above have been satisfied as of the date of the Extension Notice and that all conditions set forth in clauses (ii) through (vi) have been satisfied as of the Option Termination Date. If all of the foregoing conditions have been satisfied on the date set forth above, the period for exercise of the Call Option shall be extended from the Option Termination Date to the Extended Option Termination Date. The period from the Effective Date through the Option Termination Date, as the same may be so extended shall hereinafter be referred to as the "Redemption Period". For the avoidance of doubt, any reference to the "lapse" of the Call Option in this Agreement shall refer to the time at which the Call Option can no longer be exercised or consummatedDecember 31, as the case may be.
(c) If at any time the Call Option is in effect the Maguire Members provide RECP with the Call Notice but do not consumm▇▇▇ ▇▇▇ Call Transaction on the Call Date, then, as of the close of business (New York City time) on the Call Date, (i) the Maguire Members will on demand pay all the costs and expenses incurr▇▇ ▇▇ ▇ECP in connection thereof; (ii) the Call Option shall, automatically and without any further action, lapse; (iii) a Trigger Event shall be deemed to have occurred; and (iv) any Extension Escrow Amount shall automatically, and without any further action, be transferred to RECP and shall be deemed a distribution in respect of its Managing Member Interest, provided, however, that the Maguire Members will have a one time right to delay the Call Date by ▇▇ ▇▇▇e than 30 days (provided that the Call Date shall in no event be later than the last date on which the Call Transaction could be closed as described in Section 3.1(a) above.
(d) Notwithstanding 2022. Otherwise the provisions of Section 3.1(a) above, in the event: (i)(x) the Maguire Members or any of their respective Affiliates have breached ▇▇ ▇▇▇ in default in respect of any representation, warranty or covenant under this Agreement or any Transaction Document to which they are a party after notice Sections 11 and lapse of any applicable cure periods if such exist (a "Maguire Event of Default"); (y) such Maguire Event of Default does n▇▇ ▇▇▇▇lt in an Event of Default or E▇▇▇▇ ▇▇ Acceleration under any of the Loan Documents; and (z) RECP notifies the Maguire Members of such Maguire Event of Default; or (ii) the death ▇▇ ▇▇▇▇bility of Maguire ▇▇▇ ▇▇e failure of the Maguire Members to appoint within 40 ▇▇▇▇ ▇▇y other person to perfor▇ ▇▇▇ ▇uties and responsibilities with respect to the Property, who is acceptable to RECP at its sole discretion, then subject to Section 3.1(a) above, the Maguire Members may only exercise their rights and effect a Call Opt▇▇▇ (▇▇ the right to effect a Call Option has not otherwise lapsed or expired and has not been suspended as provided herein) so long as the Call Date shall occur no later than three months after the date of either of the events described in (i) or (ii) above12 remain unaffected.
(e) The Call Option shall immediately and without any further action lapse and be of no further force and effect subject to the provisions of this subsection (e): (i) upon the occurrence of a Maguire Event of Default that is or causes or otherwise results in a▇ ▇▇▇▇▇ of Default or Event of Acceleration under any Loan Documents; or, (ii) upon the occurrence of an Event of Default or Event of Acceleration under any of the Loan Documents as a result of or caused by any actions or inactions of or by the Maguire Members or their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default), unless with respect to each of (i) and (ii) the Maguire Members have obtained from the holder of the relevant Loan D▇▇▇▇▇▇▇s under which such Event(s) of Default has occurred within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration, a ▇▇▇▇▇▇▇ confirmation that such Person irrevocably waives such default or irrevocably agrees that it will not enforce its rights and remedies under such Loan Document with respect to such default (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions), in which case the Call Option shall automatically and without any further action be reinstated.
(f) Unless it has previously lapsed or expired, the Call Option shall immediately and without any further action be suspended and may not be exercised at any time (the "Suspension Period") during the period in which: (X) (i) an Event of Default or Event of Acceleration has occurred and is continuing under any of the Loan Documents that is not attributable to a Maguire Event of Default or any action or inaction of the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default or Event of Acceleration) unless either: (1) such Event of Default or Event of Acceleration has been irrevocably waived in writing by the holder of the relevant Loan Document, or (2) the holder of the relevant Loan Document confirms in writing that it irrevocably agrees not to enforce its rights and remedies under such Loan Document with respect to such Event of Default or Event of Acceleration, in each case of (1) and (2) above within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions) or (ii) an Event of Default or Event of Acceleration has occurred under any of the Loan Documents and such Event of Default has been cured by RECP; (Y) such Event of Default or Event of Acceleration was not caused by RECP (it being understood and agreed that a Performance Default shall not be deemed an Event of Default or Event of Acceleration caused by RECP) unless (I) the Event of Default is a monetary default under the Loan Documents that has no cure period (other than upon maturity), (II) RECP has cured such default pursuant to the emergency provision of Section 7.3(c) of the Operating Agreement and (III) within 5 Business Days after the cure by RECP the Maguire Members reimburse RECP for all costs and expenses incurred i▇ ▇▇▇▇▇g such default plus interest thereon at the rate of 25% per annum; and (Z) RECP is attempting during such Suspension Period to sell or refinance the Property, or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary of the Company. Notwithstanding the foregoing, if a written forbearance agreement that provides for the suspension of remedies by the applicable lender under the relevant Loan Documents is entered into by the Company or the applicable Subsidiary (the period during which the exercise of such remedies is suspended being hereinafter referred to as the "Forbearance Period"), a Suspension Period will be ineffective and will not renew until the later of the date: (m) that is three (3) months prior to the expiration of the applicable Forbearance Period; and (n) on which RECP is attempting to sell or refinance the Property or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary of the Company (which RECP will confirm in a notice to the Maguire Members). In no event shall the occurrence and/or existence ▇▇ ▇▇▇ Suspension Period cause the Option Termination Date or the Extended Option Termination Date to be extended (as the case may be).
(g) If an Event of Default or Event of Acceleration occurs under any of the Loan Documents at a time when the Call Option has not otherwise lapsed or expired, RECP will (i) in good faith attempt to obtain from the applicable lender a written forbearance agreement in form and substance reasonably satisfactory to RECP; and (ii) to the extent the Maguire Members are unaware of such Event of Default or Event of Acc▇▇▇▇▇▇▇on, give the Maguire Members notice of such Event of Default or Event of Accelera▇▇▇▇. ▇f RECP is unsuccessful in obtaining such a forbearance agreement from the applicable lender within 15 Business Days of the occurrence of such Event of Default or Event of Acceleration, the Maguire Members will be given an opportunity, for a period of 15 Bus▇▇▇▇▇ ▇ays, to obtain such a forbearance agreement (in form and substance reasonably satisfactory to RECP) from such lenders. It will be reasonable for RECP not to approve a forbearance agreement which (x) contemplates any economic change to the Existing Mortgage Loan or the New Subordinated Debt which has an adverse effect on RECP, including, without limitation, the requirement that default or penalty interest be paid during the Forbearance Period, unless it is paid or deposited in escrow with the Company by the Maguire Members at the time of obtaining such forbearance agreement, ▇▇ (▇) requires any adverse economic change to RECP's equity position.
Appears in 1 contract
Call Option. (a) At any time no later than 6 months prior during the Term (but subject to the third anniversary last sentence of the Effective Date (the "Option Termination Date"this Section 5.07(b)), the Maguire Members or either of them may deliver written notice Company will have the option to RECP (▇▇▇ "Call Notice")repurchase all, on behalf of themselves or the Company, that they elect to purchase all but not less than all of of, the Managing Member Revenue Interests for a payment equal to the then-current Put/Call Price (including for the purposes of this Section 3, any portion “Call Option”). The Company may exercise the Call Option by delivering to the Purchaser Agent written notice thereof assigned or Transferred by RECP to any other Person) or that (the “Call Notice”). If the Company will redeem all but not less than all of exercises the Managing Member Interests Call Option, then within ten (the "Call Transaction"10) for cash on days following the date specified in of delivery of the Call Notice (the "“Call Closing Date"”), which the Company will pay the then-current Put/Call Date shall not be more than four months after Price to the date Purchasers by wire transfer of immediately available funds to the account or accounts designated by the Purchaser Agent. Effective as of the Call Closing Date, all Purchaser Commitments shall immediately terminate. Notwithstanding anything to the contrary contained in this Agreement, the Company may rescind any Call Notice (or make such Call Notice, by its terms, conditioned on the occurrence or non-occurrence of subsequent events) and payment pursuant to this Section 5.07(b); provided that in no event shall the Call Date be less than three months prior to the Option Termination Date or the Extended Option Termination Date, as the case may be. RECP will have no obligation to contribute or loan funds to the Company in connection must provide the Purchaser Agent with effecting a Call Transaction, but shall cooperate reasonably and in good faith, but new notice at no cost to RECP and without incurring any liability, with the effecting of a closing of such transaction least five (the Maguire Members' right to effect or cause a Call Transaction shall h▇▇▇▇▇▇▇ter be referred to as the "Call Option"). The Price payable for the Managing Member Interests upon the consummation of the Call Option shall be as described in Section 3.3.
(b5) On or before the date that is 90 days prior to the last date on which the any Call Option may be exercised, the Maguire Members or either of them may deliver written notice (an "Ex▇▇▇▇▇▇▇ Notice") to RECP, on behalf of themselves or the Company, that they desire to extend the Option Termination Closing Date by an additional 12 months (the "Extended Option Termination Date") subject to the satisfaction, as of such date (solely with respect to (ii), (iii) and (iv) below) and as of the Option Termination Date, of the following conditions:
(i) an extension of the term of the New Subordinated Debt has been obtained for no less than one year;
(ii) no Event of Default or Event of Acceleration has occurred and is continuing under the terms of the Existing Mortgage Debt, the New Subordinated Debt or any other material agreement (i.e., any contract or Space Lease which involves a payment of over $250,000) or any Major Lease (other than defaults caused by the act or omission of RECP that are not a Performance Default);
(iii) no event causing a Trigger Event or Maguire Event of Default (as defined below) has occurred and is cont▇▇▇▇▇▇;
(iv) RECP has received in cash a cumulative compounded monthly (to the extent not paid on a monthly basis) return of not less than 12% per annum on the remainder of the RECP Capital Contributions after the return to RECP of the Equity Reserve; provided that in calculating the 12% per annum return, there shall be excluded any distributions of the Equity Reserve which may be distributed to RECP;
(v) the Maguire Members shall have purchased the Supplemental Cap and shall ▇▇▇▇ ▇▇llaterally assigned it to the Senior Mezzanine Lender and the Junior Mezzanine Lender in accordance with the terms and conditions of the New Subordinated Debt;
(vi) the Maguire Members shall have paid in full all extension fees required ▇▇▇▇▇ ▇he terms of the New Subordinated Debt in order to extend the maturity of the New Subordinated Debt for a period of 1 year;
(vii) on or prior to the delivery of the Extension Notice, the Maguire Members will have deposited in escrow, with a financial inst▇▇▇▇▇▇▇ designated by RECP and pursuant to an escrow agreement in form and substance satisfactory to RECP (which shall provide, without limitation, for the distribution of the Extension Escrow Amount as provided in Section 3.1(c) below) satisfactory to RECP, an amount equal to the sum of: (1) the difference between the amount described in paragraph (iv) herein and the amounts actually received by RECP as distributions from if the Company as of date of has rescinded the delivery of the Extension Notice; and (2) 150% of the amount required to (x) purchase the Supplemental Cap as of the date of the Extension Notice (except that the Maguire Members shall not be required to deposit such 150% of the co▇▇ ▇▇ ▇he Supplemental Cap if the Maguire Members provide evidence to RECP that they have purchased th▇ ▇▇▇▇▇emental Cap on or before the date of delivery of such Extension Notice) and (y) the corresponding extension fees, as described in paragraphs (v) and (vi) herein (such aggregate amount, the "Extension Escrow Amount"). RECP's determination of the Extension Escrow Amount shall be binding on the parties absent manifest error. Extension Escrow Amounts shall be released as determined by RECP in order to permit satisfaction of the conditions set forth in clauses (iv), (v) and (vi) on or before the Option Termination Date. In addition, on the date of the delivery of the Extension Notice, the Maguire Members will provide RECP with the documentation evidencing ▇▇▇ ▇▇▇osit of the amounts in escrow as provided herein (including, without limitation, the escrow agreement pursuant to which such funds are held in escrow, provided that RECP shall cooperate in good faith in approving the escrow agreement) and documenting the calculation of the amounts deposited in escrow; and
(viii) receipt of certificates from the Maguire Members, in form and substance satisfactory to RECP, confirm▇▇▇ ▇▇▇t all the conditions set forth in clauses (ii) (iii), (vi) and (vii) above have been satisfied as of the date of the Extension Notice and that all conditions set forth in clauses (ii) through (vi) have been satisfied as of the Option Termination Date. If all of the foregoing conditions have been satisfied on the date set forth above, the period for exercise of the Call Option shall be extended from the Option Termination Date to the Extended Option Termination Date. The period from the Effective Date through the Option Termination Date, as the same may be so extended shall hereinafter be referred to as the "Redemption Period". For the avoidance of doubt, any reference to the "lapse" of the Call Option in this Agreement shall refer to the time at which the Call Option can no longer be exercised or consummated, as the case may be.
(c) If at any time the Call Option is in effect the Maguire Members provide RECP with the Call Notice but do not consumm▇▇▇ ▇▇▇ Call Transaction on the Call Date, then, as of the close of business (New York City time) on the Call Date, (i) the Maguire Members will on demand pay all the costs and expenses incurr▇▇ ▇▇ ▇ECP in connection thereof; (ii) the Call Option shall, automatically and without any further action, lapse; (iii) a Trigger Event shall be deemed to have occurred; and (iv) any Extension Escrow Amount shall automatically, and without any further action, be transferred to RECP and shall be deemed a distribution in respect of its Managing Member Interest, provided, however, that the Maguire Members will have a one time right to delay the Call Date by ▇▇ ▇▇▇e than 30 days (provided that the Call Date shall in no event be later than the last date on which the Call Transaction could be closed as described in Section 3.1(a) above.
(d) Notwithstanding the provisions of Section 3.1(a) above, in the event: (i)(x) the Maguire Members or any of their respective Affiliates have breached ▇▇ ▇▇▇ in default in respect of any representation, warranty or covenant under this Agreement or any Transaction Document to which they are a party after notice and lapse of any applicable cure periods if such exist (a "Maguire Event of Default"); (y) such Maguire Event of Default does n▇▇ ▇▇▇▇lt in an Event of Default or E▇▇▇▇ ▇▇ Acceleration under any of the Loan Documents; and (z) RECP notifies the Maguire Members of such Maguire Event of Default; or (ii) the death ▇▇ ▇▇▇▇bility of Maguire ▇▇▇ ▇▇e failure of the Maguire Members to appoint within 40 ▇▇▇▇ ▇▇y other person to perfor▇ ▇▇▇ ▇uties and responsibilities with respect to the Property, who is acceptable to RECP at its sole discretion, then subject to Section 3.1(a) above, the Maguire Members may only exercise their rights and effect a Call Opt▇▇▇ (▇▇ the right to effect a Call Option has not otherwise lapsed or expired and has not been suspended as provided herein) so long as the Call Date shall occur no later than three months after the date of either of the events described in (i) or (ii) above.
(e) The Call Option shall immediately and without any further action lapse and be of no further force and effect subject to the provisions of this subsection (e): (i) upon the occurrence of a Maguire Event of Default that is or causes or otherwise results in a▇ ▇▇▇▇▇ of Default or Event of Acceleration under any Loan Documents; or, (ii) upon the occurrence of an Event of Default or Event of Acceleration under any of the Loan Documents as a result of or caused by any actions or inactions of or by the Maguire Members or their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default), unless with respect to each of (i) and (ii) the Maguire Members have obtained from the holder of the relevant Loan D▇▇▇▇▇▇▇s under which such Event(s) of Default has occurred within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration, a ▇▇▇▇▇▇▇ confirmation that such Person irrevocably waives such default or irrevocably agrees that it will not enforce its rights and remedies under such Loan Document with respect to such default (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions), in which case the Call Option shall automatically and without any further action be reinstated.
(f) Unless it has previously lapsed or expired, the Call Option shall immediately and without any further action be suspended and may not be exercised at any time (the "Suspension Period") during the period in which: (X) (i) an Event of Default or Event of Acceleration has occurred and is continuing under any of the Loan Documents that is not attributable to a Maguire Event of Default or any action or inaction of the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default or Event of Acceleration) unless either: (1) such Event of Default or Event of Acceleration has been irrevocably waived in writing by the holder of the relevant Loan Document, or (2) the holder of the relevant Loan Document confirms in writing that it irrevocably agrees not to enforce its rights and remedies under such Loan Document with respect to such Event of Default or Event of Acceleration, in each case of (1) and (2) above within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions) or (ii) an Event of Default or Event of Acceleration has occurred under any of the Loan Documents and such Event of Default has been cured by RECP; (Y) such Event of Default or Event of Acceleration was not caused by RECP (it being understood and agreed that a Performance Default shall not be deemed an Event of Default or Event of Acceleration caused by RECP) unless (I) the Event of Default is a monetary default under the Loan Documents that has no cure period (other than upon maturity), (II) RECP has cured such default pursuant to the emergency provision of Section 7.3(c) of the Operating Agreement and (III) within 5 Business Days after the cure by RECP the Maguire Members reimburse RECP for all costs and expenses incurred i▇ ▇▇▇▇▇g such default plus interest thereon at the rate of 25% per annum; and (Z) RECP is attempting during such Suspension Period to sell or refinance the Property, or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary of the Companynotice. Notwithstanding the foregoing, if the Purchaser Agent and/or Purchasers have issued a written forbearance agreement that provides for the suspension of remedies by the applicable lender under the relevant Loan Documents is entered into by Funding Election Notice, the Company or the applicable Subsidiary (the period during which the exercise of such remedies is suspended being hereinafter referred to as the "Forbearance Period"), a Suspension Period will be ineffective and will not renew until the later of the date: (m) that is three (3) months prior be permitted to the expiration of the applicable Forbearance Period; and (n) on which RECP is attempting to sell or refinance the Property or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary of the Company (which RECP will confirm in a notice to the Maguire Members). In no event shall the occurrence and/or existence ▇▇ ▇▇▇ Suspension Period cause the Option Termination Date or the Extended Option Termination Date to be extended (as the case may be).
(g) If an Event of Default or Event of Acceleration occurs under any of the Loan Documents at a time when exercise the Call Option has not otherwise lapsed or expired(and no Call Closing Date will occur) during the period commencing on the FDA Approval Date through, RECP will and including, the earlier of (ia) in good faith attempt to obtain from the applicable lender a written forbearance agreement in form and substance reasonably satisfactory to RECP; Second Purchaser Payment Date and (iib) to thirty (30) days following the extent the Maguire Members are unaware of such Event of Default or Event of Acc▇▇▇▇▇▇▇on, give the Maguire Members notice of such Event of Default or Event of Accelera▇▇▇▇. ▇f RECP is unsuccessful in obtaining such a forbearance agreement from the applicable lender within 15 Business Days of the occurrence of such Event of Default or Event of Acceleration, the Maguire Members will be given an opportunity, for a period of 15 Bus▇▇▇▇▇ ▇ays, to obtain such a forbearance agreement (in form and substance reasonably satisfactory to RECP) from such lenders. It will be reasonable for RECP not to approve a forbearance agreement which (x) contemplates any economic change to the Existing Mortgage Loan or the New Subordinated Debt which has an adverse effect on RECP, including, without limitation, the requirement that default or penalty interest be paid during the Forbearance Period, unless it is paid or deposited in escrow with the Company by the Maguire Members at the time of obtaining such forbearance agreement, ▇▇ (▇) requires any adverse economic change to RECP's equity positionFDA Approval Date.
Appears in 1 contract
Sources: Revenue Interest Purchase Agreement (ImmunityBio, Inc.)
Call Option. (a) At Upon termination of the Executive’s employment with the Company or a subsidiary of the Company for any reason, the Company will have the right, exercisable for a period of 90 days after the date of the Executive’s termination of employment (the “Call Option Period”), to purchase any or all of the shares of Restricted Stock that had become vested and nonforfeitable pursuant to this Agreement at the time of termination of employment (the “Call Option”). The Company may purchase all of the Executive’s shares at a per share price equal to the Fair Market Value of the shares (as determined under Section 4(b)) on the date on which the Company gives written notice to the Executive that the Company is exercising the Call Option. If, prior to the date the Company exercises the Call Option, the Executive sells or otherwise transfers all or any portion of the shares, the shares, the shares sold or transferred will remain subject to the terms and conditions of this Section 8.
(b) The Company may exercise the Call Option, in whole or in part, by delivery of written notice (the “Call Notice”) to the Executive no later than 6 months prior to 90 days after the third anniversary Executive’s termination of the Effective Date (the "Option Termination Date"), the Maguire Members or either of them may deliver written notice to RECP (▇▇▇ "employment. The Call Notice"), on behalf of themselves or the Company, that they elect to purchase all but not less than all of the Managing Member Interests (including for the purposes of this Section 3, any portion thereof assigned or Transferred by RECP to any other Person) or Notice will state that the Company has elected to exercise the Call Option and will redeem all but not less than all set forth the purchase price of the Managing Member Interests shares to be purchased.
(c) The closing of the "Call Transaction") for cash on purchase and sale of the date specified shares pursuant to this Section 8 will take place as soon as reasonably practicable, and in the Call Notice (the "Call Date"), which Call Date shall any event not be more later than four months 30 days after the date of the Call Notice, Notice (provided that in no event shall such time will be extended as necessary to comply with applicable legal requirements) at the Call Date be less than three months prior to principal office of the Option Termination Date Company or the Extended Option Termination Date, at such other time and location as the case Company and the Executive may bemutually determine. RECP At the closing, the Executive will have no obligation to contribute or loan funds deliver to the Company an executed transfer form, and the Company will pay to the Executive by certified or bank check or wire transfer of immediately available federal funds the purchase price of the shares being purchased by the Company. The delivery of the shares by the Executive will be deemed a representation and warranty by the Executive that (I) the Executive has full right, title and interest in and to the shares, (ii) the Executive has all necessary power and authority and has taken all necessary action to sell the shares and (iii) the shares are free and clear of any and all adverse claims.
(d) The Executive acknowledges and agrees that neither the Company nor any person directly or indirectly affiliated with the Company (in each case whether as a director, officer, manager, employee, agent or otherwise) will, subject to applicable law, have any duty or obligation to disclose to the Executive, and the Executive does not, subject to applicable law, have any right to be advised of, any material information regarding the Company at any time prior to, upon, or in connection with effecting a Call Transaction, but shall cooperate reasonably and in good faith, but at no cost to RECP and without incurring any liability, termination of the Executive’s employment with the effecting Company or a subsidiary of a closing of such transaction (the Maguire Members' right to effect Company or cause a Call Transaction shall h▇▇▇▇▇▇▇ter be referred to as the "Call Option"). The Price payable for the Managing Member Interests upon the consummation of the Call Option shall be as described in Section 3.3.
(b) On or before the date that is 90 days prior to the last date on which the Call Option may be exercised, the Maguire Members or either of them may deliver written notice (an "Ex▇▇▇▇▇▇▇ Notice") to RECP, on behalf of themselves or the Company, that they desire to extend the Option Termination Date by an additional 12 months (the "Extended Option Termination Date") subject to the satisfaction, as of such date (solely with respect to (ii), (iii) and (iv) below) and as of the Option Termination Date, of the following conditions:
(i) an extension of the term of the New Subordinated Debt has been obtained for no less than one year;
(ii) no Event of Default or Event of Acceleration has occurred and is continuing under the terms of the Existing Mortgage Debt, the New Subordinated Debt or any other material agreement (i.e., any contract or Space Lease which involves a payment of over $250,000) or any Major Lease (other than defaults caused by the act or omission of RECP that are not a Performance Default);
(iii) no event causing a Trigger Event or Maguire Event of Default (as defined below) has occurred and is cont▇▇▇▇▇▇;
(iv) RECP has received in cash a cumulative compounded monthly (to the extent not paid on a monthly basis) return of not less than 12% per annum on the remainder of the RECP Capital Contributions after the return to RECP of the Equity Reserve; provided that in calculating the 12% per annum return, there shall be excluded any distributions of the Equity Reserve which may be distributed to RECP;
(v) the Maguire Members shall have purchased the Supplemental Cap and shall ▇▇▇▇ ▇▇llaterally assigned it to the Senior Mezzanine Lender and the Junior Mezzanine Lender in accordance with the terms and conditions of the New Subordinated Debt;
(vi) the Maguire Members shall have paid in full all extension fees required ▇▇▇▇▇ ▇he terms of the New Subordinated Debt in order to extend the maturity of the New Subordinated Debt for a period of 1 year;
(vii) on or prior to the delivery of the Extension Notice, the Maguire Members will have deposited in escrow, with a financial inst▇▇▇▇▇▇▇ designated by RECP and pursuant to an escrow agreement in form and substance satisfactory to RECP (which shall provide, without limitation, for the distribution of the Extension Escrow Amount as provided in Section 3.1(c) below) satisfactory to RECP, an amount equal to the sum of: (1) the difference between the amount described in paragraph (iv) herein and the amounts actually received by RECP as distributions from the Company as of date of the delivery of the Extension Notice; and (2) 150% of the amount required to (x) purchase the Supplemental Cap as of the date of the Extension Notice (except that the Maguire Members shall not be required to deposit such 150% of the co▇▇ ▇▇ ▇he Supplemental Cap if the Maguire Members provide evidence to RECP that they have purchased th▇ ▇▇▇▇▇emental Cap on or before the date of delivery of such Extension Notice) and (y) the corresponding extension fees, as described in paragraphs (v) and (vi) herein (such aggregate amount, the "Extension Escrow Amount"). RECP's determination of the Extension Escrow Amount shall be binding on the parties absent manifest error. Extension Escrow Amounts shall be released as determined by RECP in order to permit satisfaction of the conditions set forth in clauses (iv), (v) and (vi) on or before the Option Termination Date. In addition, on the date of the delivery of the Extension Notice, the Maguire Members will provide RECP with the documentation evidencing ▇▇▇ ▇▇▇osit of the amounts in escrow as provided herein (including, without limitation, the escrow agreement pursuant to which such funds are held in escrow, provided that RECP shall cooperate in good faith in approving the escrow agreement) and documenting the calculation of the amounts deposited in escrow; and
(viii) receipt of certificates from the Maguire Members, in form and substance satisfactory to RECP, confirm▇▇▇ ▇▇▇t all the conditions set forth in clauses (ii) (iii), (vi) and (vii) above have been satisfied as of the date of the Extension Notice and that all conditions set forth in clauses (ii) through (vi) have been satisfied as of the Option Termination Date. If all of the foregoing conditions have been satisfied on the date set forth above, the period for exercise of the Call Option shall be extended from or any purchase of the Option Termination Date shares pursuant to the Extended Option Termination Date. The period from the Effective Date through the Option Termination Date, as the same may be so extended shall hereinafter be referred to as the "Redemption Period". For the avoidance of doubt, any reference to the "lapse" of the Call Option in this Agreement shall refer to the time at which the Call Option can no longer be exercised or consummated, as the case may be.
(c) If at any time the Call Option is in effect the Maguire Members provide RECP with the Call Notice but do not consumm▇▇▇ ▇▇▇ Call Transaction on the Call Date, then, as of the close of business (New York City time) on the Call Date, (i) the Maguire Members will on demand pay all the costs and expenses incurr▇▇ ▇▇ ▇ECP in connection thereof; (ii) the Call Option shall, automatically and without any further action, lapse; (iii) a Trigger Event shall be deemed to have occurred; and (iv) any Extension Escrow Amount shall automatically, and without any further action, be transferred to RECP and shall be deemed a distribution in respect of its Managing Member Interest, provided, however, that the Maguire Members will have a one time right to delay the Call Date by ▇▇ ▇▇▇e than 30 days (provided that the Call Date shall in no event be later than the last date on which the Call Transaction could be closed as described in Section 3.1(a) above.
(d) Notwithstanding the provisions of Section 3.1(a) above, in the event: (i)(x) the Maguire Members or any of their respective Affiliates have breached ▇▇ ▇▇▇ in default in respect of any representation, warranty or covenant under this Agreement or any Transaction Document to which they are a party after notice and lapse of any applicable cure periods if such exist (a "Maguire Event of Default"); (y) such Maguire Event of Default does n▇▇ ▇▇▇▇lt in an Event of Default or E▇▇▇▇ ▇▇ Acceleration under any of the Loan Documents; and (z) RECP notifies the Maguire Members of such Maguire Event of Default; or (ii) the death ▇▇ ▇▇▇▇bility of Maguire ▇▇▇ ▇▇e failure of the Maguire Members to appoint within 40 ▇▇▇▇ ▇▇y other person to perfor▇ ▇▇▇ ▇uties and responsibilities with respect to the Property, who is acceptable to RECP at its sole discretion, then subject to Section 3.1(a) above, the Maguire Members may only exercise their rights and effect a Call Opt▇▇▇ (▇▇ the right to effect a Call Option has not otherwise lapsed or expired and has not been suspended as provided herein) so long as the Call Date shall occur no later than three months after the date of either of the events described in (i) or (ii) aboveOption.
(e) The Call Option shall immediately and without any further action lapse and be of no further force and effect subject to the foregoing provisions of this subsection (e): Section 8 will expire upon the earlier of (i) upon the occurrence of a Maguire Event of Default that is or causes or otherwise results Change in a▇ ▇▇▇▇▇ of Default or Event of Acceleration under any Loan Documents; or, Control (ii) upon the occurrence of an Event of Default or Event of Acceleration under any of the Loan Documents as a result of or caused by any actions or inactions of or by the Maguire Members or their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default), unless with respect to each of (idefined in Section 3) and (ii) the Maguire Members have obtained from the holder closing of the relevant Loan D▇▇▇▇▇▇▇s under which such Event(s) of Default has occurred within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration, a ▇▇▇▇▇▇▇ confirmation that such Person irrevocably waives such default or irrevocably agrees that it will not enforce its rights and remedies under such Loan Document with respect to such default (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions), in which case the Call Option shall automatically and without any further action be reinstated.
(f) Unless it has previously lapsed or expired, the Call Option shall immediately and without any further action be suspended and may not be exercised at any time (the "Suspension Period") during the period in which: (X) (i) an Event of Default or Event of Acceleration has occurred and is continuing under any of the Loan Documents that is not attributable to a Maguire Event of Default or any action or inaction of the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default or Event of Acceleration) unless either: (1) such Event of Default or Event of Acceleration has been irrevocably waived in writing by the holder of the relevant Loan Document, or (2) the holder of the relevant Loan Document confirms in writing that it irrevocably agrees not to enforce its rights and remedies under such Loan Document with respect to such Event of Default or Event of Acceleration, in each case of (1) and (2) above within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions) or (ii) an Event of Default or Event of Acceleration has occurred under any of the Loan Documents and such Event of Default has been cured by RECP; (Y) such Event of Default or Event of Acceleration was not caused by RECP (it being understood and agreed that a Performance Default shall not be deemed an Event of Default or Event of Acceleration caused by RECP) unless (I) the Event of Default is a monetary default under the Loan Documents that has no cure period (other than upon maturity), (II) RECP has cured such default pursuant to the emergency provision of Section 7.3(c) of the Operating Agreement and (III) within 5 Business Days after the cure by RECP the Maguire Members reimburse RECP for all costs and expenses incurred i▇ ▇▇▇▇▇g such default plus interest thereon at the rate of 25% per annum; and (Z) RECP is attempting during such Suspension Period to sell or refinance the Property, or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary initial public offering of the Company. Notwithstanding the foregoing, if a written forbearance agreement that provides for the suspension of remedies by the applicable lender under the relevant Loan Documents is entered into by the Company or the applicable Subsidiary (the period during which the exercise of such remedies is suspended being hereinafter referred to as the "Forbearance Period"), a Suspension Period will be ineffective and will not renew until the later of the date: (m) that is three (3) months prior to the expiration of the applicable Forbearance Period; and (n) on which RECP is attempting to sell or refinance the Property or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary of the Company (which RECP will confirm in a notice to the Maguire Members). In no event shall the occurrence and/or existence ▇▇ ▇▇▇ Suspension Period cause the Option Termination Date or the Extended Option Termination Date to be extended (as the case may be)’s shares.
(g) If an Event of Default or Event of Acceleration occurs under any of the Loan Documents at a time when the Call Option has not otherwise lapsed or expired, RECP will (i) in good faith attempt to obtain from the applicable lender a written forbearance agreement in form and substance reasonably satisfactory to RECP; and (ii) to the extent the Maguire Members are unaware of such Event of Default or Event of Acc▇▇▇▇▇▇▇on, give the Maguire Members notice of such Event of Default or Event of Accelera▇▇▇▇. ▇f RECP is unsuccessful in obtaining such a forbearance agreement from the applicable lender within 15 Business Days of the occurrence of such Event of Default or Event of Acceleration, the Maguire Members will be given an opportunity, for a period of 15 Bus▇▇▇▇▇ ▇ays, to obtain such a forbearance agreement (in form and substance reasonably satisfactory to RECP) from such lenders. It will be reasonable for RECP not to approve a forbearance agreement which (x) contemplates any economic change to the Existing Mortgage Loan or the New Subordinated Debt which has an adverse effect on RECP, including, without limitation, the requirement that default or penalty interest be paid during the Forbearance Period, unless it is paid or deposited in escrow with the Company by the Maguire Members at the time of obtaining such forbearance agreement, ▇▇ (▇) requires any adverse economic change to RECP's equity position.
Appears in 1 contract
Sources: Restricted Stock Agreement (Aei)
Call Option. (a) At any time no later than 6 months prior to the third anniversary of the Effective Date (the "Option Termination Date"), the Maguire Members or either of them may deliver written notice to RECP (▇▇▇ "Call Notice"), on behalf of themselves or the Company, that they elect to purchase all but not less than all of the Managing Member Interests (including for the purposes of this Section 3, any portion thereof assigned or Transferred by RECP to any other Person) or that the Company will redeem all but not less than all of the Managing Member Interests (the "Call Transaction") for cash on the date specified in the Call Notice (the "Call Date"), which Call Date shall not be more than four months after the date of the Call Notice, provided that in no event shall the Call Date be less than three months prior to the Option Termination Date or the Extended Option Termination Date, as the case may be. RECP will have no obligation to contribute or loan funds to the Company in connection with effecting a Call Transaction, but shall cooperate reasonably and in good faith, but at no cost to RECP and without incurring any liability, with the effecting of a closing of such transaction (the Maguire Members' right to effect or cause a Call Transaction shall h▇▇▇▇▇▇▇ter be referred to as the "Call Option"). The Price payable for the Managing Member Interests upon the consummation of the Call Option shall be as described in Section 3.3.
(b) On or before the date that is 90 days prior to the last date on which the Call Option may be exercised, the Maguire Members or either of them may deliver written notice (an "Ex▇1.2.1 ▇▇▇▇▇▇ Notice") to RECP, on behalf of themselves or the Company, that they desire to extend the Option Termination Date by an additional 12 months (the "Extended Option Termination Date") subject to the satisfaction, as of such date (solely with respect to (ii), (iii) and (iv) below) and as of the Option Termination Date, of the following conditions:
(i) an extension of the term of the New Subordinated Debt has been obtained for no less than one year;
(ii) no Event of Default or Event of Acceleration has occurred and is continuing under the terms of the Existing Mortgage Debt, the New Subordinated Debt or any other material agreement (i.e., any contract or Space Lease which involves a payment of over $250,000) or any Major Lease (other than defaults caused by the act or omission of RECP that are not a Performance Default);
(iii) no event causing a Trigger Event or Maguire Event of Default (as defined below) has occurred and is cont▇▇▇▇▇ undertakes to sell, upon notice served by Sierra Wireless in the form set out in Schedule 1.2.1, all the 2006 Free Shares and 2007 Free Shares in accordance with the conditions described below (the “Call Option”).
1.2.2 The Call Option may be exercised only once for each plan, in compliance with the provisions of Article 7.5 below, at any time during the following time periods: (the “Call Option Exercise Period”), provided that ▇▇;
(iv) RECP has received in cash a cumulative compounded monthly (to the extent not paid on a monthly basis) return of not less than 12% per annum on the remainder of the RECP Capital Contributions after the return to RECP of the Equity Reserve; provided that in calculating the 12% per annum return, there shall be excluded any distributions of the Equity Reserve which may be distributed to RECP;
(v) the Maguire Members shall have purchased the Supplemental Cap and shall ▇▇▇▇ ▇▇llaterally assigned it to the Senior Mezzanine Lender and the Junior Mezzanine Lender in accordance with the terms and conditions of the New Subordinated Debt;
(vi) the Maguire Members shall have paid in full all extension fees required ▇▇▇▇▇ ▇he terms of has not previously served a valid put option notice for the New Subordinated Debt same shares: - From 19 June 2010 to 19 September 2010 as regards the 2006 Free Shares; - From 9 July 2011 to 9 October 2011 as regards the 2007 Free Shares; Being specified that: - in order to extend the maturity of event the New Subordinated Debt for a period of 1 year;
(vii) on or prior to the delivery of the Extension NoticePut Option is deemed void under Article 1.1.8, the Maguire Members will have deposited in escrow, with a financial inst▇▇▇▇▇▇▇ designated by RECP and pursuant to an escrow agreement in form and substance satisfactory to RECP (which shall provide, without limitation, for the distribution of the Extension Escrow Amount as provided in Section 3.1(c) below) satisfactory to RECP, an amount equal to the sum of: (1) the difference between the amount described in paragraph (iv) herein and the amounts actually received by RECP as distributions from the Company as of date of the delivery of the Extension Notice; and (2) 150% of the amount required to (x) purchase the Supplemental Cap as of the date of the Extension Notice (except that the Maguire Members shall not be required to deposit such 150% of the co▇▇ ▇▇ ▇he Supplemental Cap if the Maguire Members provide evidence to RECP that they have purchased th▇ ▇▇▇▇▇emental Cap on or before the date of delivery of such Extension Notice) and (y) the corresponding extension fees, as described in paragraphs (v) and (vi) herein (such aggregate amount, the "Extension Escrow Amount"). RECP's determination of the Extension Escrow Amount time periods indicated above shall be binding on automatically extended by 12 months each; - in the parties absent manifest error. Extension Escrow Amounts shall be released as determined by RECP in order to permit satisfaction of event the conditions set forth in clauses (iv), (v) and (vi) on or before the Option Termination Date. In addition, on the date of the delivery of the Extension Notice, the Maguire Members will provide RECP with the documentation evidencing ▇▇▇ ▇▇▇osit of the amounts in escrow as provided herein (including, without limitation, the escrow agreement pursuant to which such funds are held in escrow, provided that RECP shall cooperate in good faith in approving the escrow agreement) and documenting the calculation of the amounts deposited in escrow; and
(viii) receipt of certificates from the Maguire Members, in form and substance satisfactory to RECP, confirm▇▇▇ ▇▇▇t all the conditions set forth in clauses (ii) (iii), (vi) and (vii) above have been satisfied as of the date of the Extension Notice and that all conditions set forth in clauses (ii) through (vi) have been satisfied as of the Option Termination Date. If all of the foregoing conditions have been satisfied on the date set forth above, the period for exercise of the Call Option is not possible for regulatory reasons (such as during blackout periods), the relevant Call Option Exercised Period shall be automatically extended from the Option Termination Date for a duration equal to the Extended Option Termination Date. The period from the Effective Date through the Option Termination Date, as the same may be so extended shall hereinafter be referred to as the "Redemption Period". For the avoidance of doubt, any reference to the "lapse" of the Call Option in this Agreement shall refer to the time at which the Call Option can no longer be exercised or consummated, as the case may be.
(c) If at any time the Call Option is in effect the Maguire Members provide RECP with the Call Notice but do not consumm▇▇▇ ▇▇▇ Call Transaction on the Call Date, then, as of the close of business (New York City time) on the Call Date, (i) the Maguire Members will on demand pay all the costs and expenses incurr▇▇ ▇▇ ▇ECP in connection thereof; (ii) the Call Option shall, automatically and without any further action, lapse; (iii) a Trigger Event shall be deemed to have occurred; and (iv) any Extension Escrow Amount shall automatically, and without any further action, be transferred to RECP and shall be deemed a distribution in respect of its Managing Member Interest, provided, however, that the Maguire Members will have a one time right to delay the Call Date by ▇▇ ▇▇▇e than 30 days (provided that the Call Date shall in no event be later than the last date on which the Call Transaction could be closed as described in Section 3.1(a) above.
(d) Notwithstanding the provisions of Section 3.1(a) above, in the event: (i)(x) the Maguire Members or any of their respective Affiliates have breached ▇▇ ▇▇▇ in default in respect of any representation, warranty or covenant under this Agreement or any Transaction Document to which they are a party after notice and lapse of any applicable cure periods if such exist (a "Maguire Event of Default"); (y) such Maguire Event of Default does n▇▇ ▇▇▇▇lt in an Event of Default or E▇▇▇▇ ▇▇ Acceleration under any of the Loan Documents; and (z) RECP notifies the Maguire Members of such Maguire Event of Default; or (ii) the death ▇▇ ▇▇▇▇bility of Maguire ▇▇▇ ▇▇e failure of the Maguire Members to appoint within 40 ▇▇▇▇ ▇▇y other person to perfor▇ ▇▇▇ ▇uties and responsibilities with respect to the Property, who is acceptable to RECP at its sole discretion, then subject to Section 3.1(a) above, the Maguire Members may only exercise their rights and effect a Call Opt▇▇▇ (▇▇ the right to effect a Call Option has not otherwise lapsed or expired and has not been suspended as provided herein) so long as the Call Date shall occur no later than three months after the date of either of the events described in (i) or (ii) above.
(e) The Call Option shall immediately and without any further action lapse and be of no further force and effect subject to the provisions of this subsection (e): (i) upon the occurrence of a Maguire Event of Default that is or causes or otherwise results in a▇ ▇▇▇▇▇ of Default or Event of Acceleration under any Loan Documents; or, (ii) upon the occurrence of an Event of Default or Event of Acceleration under any of the Loan Documents as a result of or caused by any actions or inactions of or by the Maguire Members or their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default), unless with respect to each of (i) and (ii) the Maguire Members have obtained from the holder of the relevant Loan D▇▇▇▇▇▇▇s under which such Event(s) of Default has occurred within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration, a ▇▇▇▇▇▇▇ confirmation that such Person irrevocably waives such default or irrevocably agrees that it will not enforce its rights and remedies under such Loan Document with respect to such default (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions), in which case the Call Option shall automatically and without any further action be reinstated.
(f) Unless it has previously lapsed or expired, the Call Option shall immediately and without any further action be suspended and may not be exercised at any time (the "Suspension Period") during the period in which: (X) (i) an Event of Default or Event of Acceleration has occurred and is continuing under any of the Loan Documents that is not attributable to a Maguire Event of Default or any action or inaction of the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default or Event of Acceleration) unless either: (1) such Event of Default or Event of Acceleration has been irrevocably waived in writing by the holder of the relevant Loan Document, or (2) the holder of the relevant Loan Document confirms in writing that it irrevocably agrees not to enforce its rights and remedies under such Loan Document with respect to such Event of Default or Event of Acceleration, in each case of (1) and (2) above within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions) or (ii) an Event of Default or Event of Acceleration has occurred under any of the Loan Documents and such Event of Default has been cured by RECP; (Y) such Event of Default or Event of Acceleration was not caused by RECP (it being understood and agreed that a Performance Default shall not be deemed an Event of Default or Event of Acceleration caused by RECP) unless (I) the Event of Default is a monetary default under the Loan Documents that has no cure period (other than upon maturity), (II) RECP has cured such default pursuant to the emergency provision of Section 7.3(c) of the Operating Agreement and (III) within 5 Business Days after the cure by RECP the Maguire Members reimburse RECP for all costs and expenses incurred i▇ ▇▇▇▇▇g such default plus interest thereon at the rate of 25% per annum; and (Z) RECP is attempting during such Suspension Period to sell or refinance the Property, or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary of the Company. Notwithstanding the foregoing, if a written forbearance agreement that provides for the suspension of remedies by the applicable lender under the relevant Loan Documents is entered into by the Company or the applicable Subsidiary (the period during which the exercise of such remedies is suspended being hereinafter referred to as the "Forbearance Period"), a Suspension Period will be ineffective and will not renew until the later of the date: (m) that is three (3) months prior to the expiration of the applicable Forbearance Period; and (n) on which RECP is attempting to sell or refinance the Property or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary of the Company (which RECP will confirm in a notice to the Maguire Members). In no event shall the occurrence and/or existence ▇▇ ▇▇▇ Suspension Period cause the Option Termination Date or the Extended Option Termination Date to be extended (as the case may be).
(g) If an Event of Default or Event of Acceleration occurs under any of the Loan Documents at a time when the Call Option has was not otherwise lapsed or expired, RECP possible.
1.2.3 The Call Option will (i) in good faith attempt to obtain from become null and void if Sierra Wireless does not exercise it at the applicable lender a written forbearance agreement in form and substance reasonably satisfactory to RECP; and (ii) to latest at the extent the Maguire Members are unaware of such Event of Default or Event of Acc▇▇▇▇▇▇▇on, give the Maguire Members notice of such Event of Default or Event of Accelera▇▇▇▇. ▇f RECP is unsuccessful in obtaining such a forbearance agreement from the applicable lender within 15 Business Days end of the occurrence Call Option Exercise Period, unless the Parties reach an agreement prior to such expiry to extend the Call Option Exercise Period.
1.2.4 The Call Option purchase price of such Event of Default or Event of Acceleration, the Maguire Members each 2006 Free Share and 2007 Free Share will be given an opportunity, for a period € 8.50 less the amount of 15 Busdividends or any other distribution of reserves (including any redemption of shares or repayment of capital) received by ▇▇▇▇▇▇ ▇ays▇▇▇▇ prior to the payment made by Sierra Wireless pursuant to Article 1.3.3; provided, however, that this price will be adjusted, as the case may be, to obtain such a forbearance agreement (in form and substance reasonably satisfactory to RECP) from such lenders. It will be reasonable for RECP not to approve a forbearance agreement which (x) contemplates take into account any economic change to split, reverse-split or any other operation on the Existing Mortgage Loan or Company’s shares.
1.2.5 Sierra Wireless accepts the New Subordinated Debt which has benefit of the Call Option as an adverse effect on RECP, includingoption only, without limitationhowever undertaking to purchase the 2006 Free Shares and the 2007 Free Shares until Sierra Wireless serves the notice referred to in Article 1.2.1, at which point Sierra Wireless shall have undertaken to buy the requirement that default or penalty interest be paid during the Forbearance Period, unless it is paid or deposited in escrow with the Company by the Maguire Members at the time of obtaining such forbearance agreement, 2006 Free Shares and/or 2007 Free Shares from ▇▇▇▇▇▇ (▇) requires any adverse economic change to RECP's equity position▇▇▇▇.
Appears in 1 contract
Sources: Agreement (Wavecom Sa)
Call Option. (a) At Each Management Party agrees for himself or herself and all other Individual Related Parties who acquire Shares or Options from such Management Party that the Company and the Green Parties will have a call right (the “Call Option”) solely for cash consideration, on his or her Shares, including, but not limited to any time no later than 6 months prior Shares acquired by such Management Party and Individual Related Party upon the exercise of Options after the termination of such Management Party’s employment (the “Callable Shares”). Except in the event that a Management Party is terminated for Cause (in which event the Call Option will not expire as to any Shares), such Call Option will, as to each Management Party and his or her Individual Related Parties (i) expire upon the third first anniversary of the Effective Date date hereof as to 20% of the Shares owned by such Management Party on the date hereof and with respect to any Options held by such Management Party as of the date hereof, as to 20% of the Shares subject to such Options (and as to any Shares or Options acquired thereafter, the "Option Termination Date"periods identified in this Section 2.8 shall be applied from the date of such acquisition), and (ii) expire as to an additional 20% of such Shares and with respect to any Options, as to an additional 20% of the Shares subject to such Options, on each subsequent anniversary through the fifth anniversary of the date hereof (or in the case of a later acquisition, thereof). Upon the termination of a Management Party’s employment with the Company or any subsidiary of the Company for any reason including, without limitation, the voluntary termination or resignation, dismissal, involuntary termination, death, retirement or Permanent Disability of such Management Party (or, with respect to Shares acquired upon the exercise of Options following such termination of such Management Party’s employment, upon the exercise by a Management Party or Individual Related Party of such Options following such termination) (each, a “Call Event”), the Maguire Members or either of them Green Parties may deliver exercise the Call Option by written notice (a “Call Option Notice”) delivered to RECP the Management Party and any applicable Individual Related Parties (▇▇▇ "Call Notice"), on behalf of themselves or with a copy to the Company) within ninety (90) days after the receipt by the Chosen Buyer (defined for this purpose the same as in Section 2.7.1(b)) of notice of such Call Event (the “Exercise Date”). With respect to Options exercised after termination of employment, such 90-day period shall commence on the date of such exercise. To the extent a Management Party (and or his or her Individual Related Parties) holds Shares that they were purchased or acquired in a proportionate “strip” of securities comprising Common Stock, Series A Preferred Stock and Series B Preferred Stock, the Call Right will be exercised with respect to each class comprising such “strip” in a proportionate manner as to such Shares. Upon the giving of a Call Option Notice, the Green Parties will be obligated to purchase and the Management Party will be obligated to sell all or any lesser portion indicated in the Call Option Notice of the Callable Shares owned at the time of the Call Event by the Seller for consideration calculated as set forth below:
(i) in the case of termination of employment of such Management Party for Cause, the consideration will be the lesser of the Cost of such Shares to such Management Party and Fair Market Value on the Exercise Date; and
(ii) in the case of any other termination of such Management Party (including dismissal, death, Retirement or Permanent Disability) or in the case of voluntary termination of employment of such Management Party, the consideration will be Fair Market Value of the relevant Shares on the Exercise Date.
(b) To the extent the Green Parties do not collectively elect to purchase all but Callable Shares pursuant to the Call Option Notice, the Company shall be entitled to elect to purchase any or all Callable Shares not less than so subject to the Call Option Notice, exercisable by delivery of a written notice (the “Second Call Notice”) to the Management Party (who shall provide a copy to each Individual Related Party then holding Callable Shares) within thirty (30) days after delivery of the Call Option Notice. The Company shall be entitled to elect to purchase up to all of the Managing Member Interests (including for the purposes of this Section 3, any portion thereof assigned or Transferred by RECP to any other Person) or that the Company will redeem all but not less than all of the Managing Member Interests (the "Call Transaction") for cash on the date specified in the Call Notice (the "Call Date"), which Call Date shall not be more than four months after the date remaining Callable Shares. Delivery of the Call Option Notice or a Second Call Notice, provided that in no event shall the Call Date be less than three months prior to the Option Termination Date or the Extended Option Termination Date, as the case may be, constitutes an irrevocable election to purchase and, upon giving such notice the Chosen Buyers will be obligated to purchase and the Management Party and such Individual Related Parties (each, a “Seller”) will be obligated to sell all or any lesser portion of the Callable Shares indicated in the Call Option Notice or the Second Call Notice, as applicable. RECP will have no obligation The cash consideration to contribute or loan funds to be paid for the Company Callable Shares purchased in connection with effecting a any Call Transaction, but shall cooperate reasonably and in good faith, but at no cost to RECP and without incurring any liability, with the effecting of a closing of such transaction (the Maguire Members' right to effect or cause a Call Transaction shall h▇▇▇▇▇▇▇ter be referred to as the "Call Option"). The Price payable for the Managing Member Interests upon the consummation of the Call Option Event shall be the same as described in Section 3.3.
(b) On or before the date that is 90 days prior to the last date on which the Call Option may be exercised, the Maguire Members or either of them may deliver written notice (an "Ex▇▇▇▇▇▇▇ Notice") to RECP, on behalf of themselves or the Company, that they desire to extend the Option Termination Date by an additional 12 months (the "Extended Option Termination Date") subject to the satisfaction, as of such date (solely with respect to (ii), (iii) and (iv) below) and as of the Option Termination Date, of the following conditions:
(i) an extension of the term of the New Subordinated Debt has been obtained for no less than one year;
(ii) no Event of Default or Event of Acceleration has occurred and is continuing under the terms of the Existing Mortgage Debt, the New Subordinated Debt or any other material agreement (i.e., any contract or Space Lease which involves a payment of over $250,000) or any Major Lease (other than defaults caused by the act or omission of RECP that are not a Performance Default);
(iii) no event causing a Trigger Event or Maguire Event of Default (as defined below) has occurred and is cont▇▇▇▇▇▇;
(iv) RECP has received in cash a cumulative compounded monthly (to the extent not paid on a monthly basis) return of not less than 12% per annum on the remainder of the RECP Capital Contributions after the return to RECP of the Equity Reserve; provided that in calculating the 12% per annum return, there shall be excluded any distributions of the Equity Reserve which may be distributed to RECP;
(v) the Maguire Members shall have purchased the Supplemental Cap and shall ▇▇▇▇ ▇▇llaterally assigned it to the Senior Mezzanine Lender and the Junior Mezzanine Lender in accordance with the terms and conditions of the New Subordinated Debt;
(vi) the Maguire Members shall have paid in full all extension fees required ▇▇▇▇▇ ▇he terms of the New Subordinated Debt in order to extend the maturity of the New Subordinated Debt for a period of 1 year;
(vii) on or prior to the delivery of the Extension Notice, the Maguire Members will have deposited in escrow, with a financial inst▇▇▇▇▇▇▇ designated by RECP and pursuant to an escrow agreement in form and substance satisfactory to RECP (which shall provide, without limitation, for the distribution of the Extension Escrow Amount as provided in Section 3.1(c) below) satisfactory to RECP, an amount equal to the sum of: (1) the difference between the amount described in paragraph (iv) herein and the amounts actually received by RECP as distributions from the Company as of date of the delivery of the Extension Notice; and (2) 150% of the amount required to (x) purchase the Supplemental Cap as of the date of the Extension Notice (except that the Maguire Members shall not be required to deposit such 150% of the co▇▇ ▇▇ ▇he Supplemental Cap if the Maguire Members provide evidence to RECP that they have purchased th▇ ▇▇▇▇▇emental Cap on or before the date of delivery of such Extension Notice) and (y) the corresponding extension fees, as described in paragraphs (v) and (vi) herein (such aggregate amount, the "Extension Escrow Amount"). RECP's determination of the Extension Escrow Amount shall be binding on the parties absent manifest error. Extension Escrow Amounts shall be released as determined by RECP in order to permit satisfaction of the conditions set forth in clauses (iv), (vSection 2.8(a) and (vi) on or before the Option Termination Date. In addition, on the date of the delivery of the Extension Notice, the Maguire Members will provide RECP with the documentation evidencing ▇▇▇ ▇▇▇osit of the amounts in escrow as provided herein (including, without limitation, the escrow agreement pursuant to which such funds are held in escrow, provided that RECP shall cooperate in good faith in approving the escrow agreement) and documenting the calculation of the amounts deposited in escrow; and
(viii) receipt of certificates from the Maguire Members, in form and substance satisfactory to RECP, confirm▇▇▇ ▇▇▇t all the conditions set forth in clauses (ii) (iii), (vi) and (vii) above have been satisfied as of the date of the Extension Notice and that all conditions set forth in clauses (ii) through (vi) have been satisfied as of the Option Termination Date. If all of the foregoing conditions have been satisfied on the date set forth above, the period for exercise of the Call Option shall be extended from the Option Termination Date to the Extended Option Termination Date. The period from the Effective Date through the Option Termination Date, as the same may be so extended shall hereinafter be referred to as the "Redemption Period". For the avoidance of doubt, any reference to the "lapse" of the Call Option in this Agreement shall refer to the time at which the Call Option can no longer be exercised or consummated, as the case may be.
(c) If The closing for all purchases and sales of Callable Shares pursuant to this Section 2.8 will be at any time the Call Option is in effect the Maguire Members provide RECP with the Call Notice but do not consumm▇▇▇ ▇▇▇ Call Transaction on the Call Date, then, as principal executive offices of the close of business (New York City time) on the Call Date, (i) the Maguire Members will on demand pay all the costs and expenses incurr▇▇ ▇▇ ▇ECP in connection thereof; (ii) the Call Option shall, automatically and without any further action, lapse; (iii) a Trigger Event shall be deemed to have occurred; and (iv) any Extension Escrow Amount shall automatically, and without any further action, be transferred to RECP and shall be deemed a distribution in respect of its Managing Member Interest, provided, however, that the Maguire Members will have a one time right to delay the Call Date by ▇▇ ▇▇▇e than Company within 30 days (provided that of the Call Date shall Exercise Date. The purchase price for the Callable Shares will be paid in no event cash, by cashier’s check or by wire fund. The Seller will cause the Callable Shares to be later delivered to the Chosen Buyer at the closing free and clear of all liens, claims, charges or encumbrances of any kind, other than those which continue to apply pursuant to the last date on which terms of this Agreement. Such Seller will take all such actions as the Call Transaction could be closed as described Chosen Buyer reasonably requests to vest in Section 3.1(a) abovethe Chosen Buyer title to the Callable Shares free of any lien, claim, charge, restriction or encumbrance incurred by or through the Seller.
(d) Notwithstanding the provisions For purposes of this Section 3.1(a) above, in the event: (i)(x) the Maguire Members or any of their respective Affiliates have breached ▇▇ ▇▇▇ in default in respect of any representation, warranty or covenant under this Agreement or any Transaction Document to which they are a party after notice and lapse of any applicable cure periods if such exist (a "Maguire Event of Default"); (y) such Maguire Event of Default does n▇▇ ▇▇▇▇lt in an Event of Default or E▇▇▇▇ ▇▇ Acceleration under any of the Loan Documents; and (z) RECP notifies the Maguire Members of such Maguire Event of Default; or (ii) the death ▇▇ ▇▇▇▇bility of Maguire ▇▇▇ ▇▇e failure of the Maguire Members to appoint within 40 ▇▇▇▇ ▇▇y other person to perfor▇ ▇▇▇ ▇uties and responsibilities with respect to the Property, who is acceptable to RECP at its sole discretion, then subject to Section 3.1(a) above2.8, the Maguire Members may only exercise their rights and effect a Call Opt▇▇▇ (▇▇ following terms have the right to effect a Call Option has not otherwise lapsed or expired and has not been suspended as provided herein) so long as the Call Date shall occur no later than three months after the date of either of the events described in (i) or (ii) above.
(e) The Call Option shall immediately and without any further action lapse and be of no further force and effect subject to the provisions of this subsection (e): (i) upon the occurrence of a Maguire Event of Default that is or causes or otherwise results in a▇ ▇▇▇▇▇ of Default or Event of Acceleration under any Loan Documents; or, (ii) upon the occurrence of an Event of Default or Event of Acceleration under any of the Loan Documents as a result of or caused by any actions or inactions of or by the Maguire Members or their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default), unless with respect to each of (i) and (ii) the Maguire Members have obtained from the holder of the relevant Loan D▇▇▇▇▇▇▇s under which such Event(s) of Default has occurred within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration, a ▇▇▇▇▇▇▇ confirmation that such Person irrevocably waives such default or irrevocably agrees that it will not enforce its rights and remedies under such Loan Document with respect to such default (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions), in which case the Call Option shall automatically and without any further action be reinstated.
(f) Unless it has previously lapsed or expired, the Call Option shall immediately and without any further action be suspended and may not be exercised at any time (the "Suspension Period") during the period in which: (X) (i) an Event of Default or Event of Acceleration has occurred and is continuing under any of the Loan Documents that is not attributable to a Maguire Event of Default or any action or inaction of the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default or Event of Acceleration) unless either: (1) such Event of Default or Event of Acceleration has been irrevocably waived in writing by the holder of the relevant Loan Document, or (2) the holder of the relevant Loan Document confirms in writing that it irrevocably agrees not to enforce its rights and remedies under such Loan Document with respect to such Event of Default or Event of Acceleration, in each case of (1) and (2) above within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions) or (ii) an Event of Default or Event of Acceleration has occurred under any of the Loan Documents and such Event of Default has been cured by RECP; (Y) such Event of Default or Event of Acceleration was not caused by RECP (it being understood and agreed that a Performance Default shall not be deemed an Event of Default or Event of Acceleration caused by RECP) unless (I) the Event of Default is a monetary default under the Loan Documents that has no cure period (other than upon maturity), (II) RECP has cured such default pursuant to the emergency provision of Section 7.3(c) of the Operating Agreement and (III) within 5 Business Days after the cure by RECP the Maguire Members reimburse RECP for all costs and expenses incurred i▇ ▇▇▇▇▇g such default plus interest thereon at the rate of 25% per annum; and (Z) RECP is attempting during such Suspension Period to sell or refinance the Property, or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary of the Company. Notwithstanding the foregoing, if a written forbearance agreement that provides for the suspension of remedies by the applicable lender under the relevant Loan Documents is entered into by the Company or the applicable Subsidiary (the period during which the exercise of such remedies is suspended being hereinafter referred to as the "Forbearance Period"), a Suspension Period will be ineffective and will not renew until the later of the date: (m) that is three (3) months prior to the expiration of the applicable Forbearance Period; and (n) on which RECP is attempting to sell or refinance the Property or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary of the Company (which RECP will confirm in a notice to the Maguire Members). In no event shall the occurrence and/or existence ▇▇ ▇▇▇ Suspension Period cause the Option Termination Date or the Extended Option Termination Date to be extended (as the case may be).
(g) If an Event of Default or Event of Acceleration occurs under any of the Loan Documents at a time when the Call Option has not otherwise lapsed or expired, RECP will (i) in good faith attempt to obtain from the applicable lender a written forbearance agreement in form and substance reasonably satisfactory to RECP; and (ii) to the extent the Maguire Members are unaware of such Event of Default or Event of Acc▇▇▇▇▇▇▇on, give the Maguire Members notice of such Event of Default or Event of Accelera▇▇▇▇. ▇f RECP is unsuccessful in obtaining such a forbearance agreement from the applicable lender within 15 Business Days of the occurrence of such Event of Default or Event of Acceleration, the Maguire Members will be given an opportunity, for a period of 15 Bus▇▇▇▇▇ ▇ays, to obtain such a forbearance agreement (in form and substance reasonably satisfactory to RECP) from such lenders. It will be reasonable for RECP not to approve a forbearance agreement which (x) contemplates any economic change to the Existing Mortgage Loan or the New Subordinated Debt which has an adverse effect on RECP, including, without limitation, the requirement that default or penalty interest be paid during the Forbearance Period, unless it is paid or deposited in escrow with the Company by the Maguire Members at the time of obtaining such forbearance agreement, ▇▇ (▇) requires any adverse economic change to RECP's equity position.following meanings:
Appears in 1 contract
Call Option. 2.11.1 If the “Outlined Terms” provide that the Company has the right to request the Optionholder (or, for the avoidance of doubt, the Optionholder’s or her successors) to transfer all or part of the Optionholder’s Shares acquired under the Option (the “Option Shares”) back to the Company (the “Call Option”) then: • The date on which the Optionholder becomes a Bad Leaver or Good Leaver shall be the “Trigger Date”. • The Company may exercise the Call Option by sending a notice to the Optionholder (the “Option Notice”) within 90 calendar days after the Trigger Date. • If the Company exercises the Call Option, the Optionholder shall take all actions requested by the Company to transfer such Shares to the Company within a period which shall be (a) At any time no later than 6 months prior if the transfer is free of charge: 14 days after the receipt of the Option Notice or (b) if the transfer is at the fair value of Shares (“Fair Value”): 14 days after the determination of Fair Value under this Section 2.11. • The Fair Value shall be determined in good faith by the Company. If the Optionholder does not agree with the Fair Value determined by the Company as set out above, the Optionholder must send a notice (a “Disagreement Notice”) to the third anniversary Company within 7 days after the receipt of Company’s calculation of Fair Value. In such case, the Fair Value shall be determined by an independent expert appointed jointly by the Optionholder and the Company. In case the Parties fail to appoint such expert within 14 days after the Disagreement Notice, the expert will be appointed by the Management Board of the Effective Date (Estonian Private Equity and Venture Capital Association or the "Option Termination Date"), equivalent organization in Estonia or should the Maguire Members latter fail or either not agree to appoint such expert within 14 days after the relevant request of them may deliver written notice to RECP (▇▇▇ "Call Notice"), on behalf of themselves or the Company, that they elect then by the competent court. The Fair Value as determined by the aforementioned expert or competent court shall be final and binding to purchase all but not less than all the Parties. The cost of the Managing Member Interests (including for aforementioned expert shall be paid by the purposes of this Section 3Parties in equal proportions. • In determining the Fair Value, any portion thereof valuation assigned or Transferred by RECP to any other Person) or that the Company will redeem all but not less than all of the Managing Member Interests (the "Call Transaction") for cash on the date specified in the Call Notice (the "Call Date"), which Call Date shall not be more than four months after the date of the Call Notice, provided that in no event shall the Call Date be less than three months prior to the Option Termination Date or the Extended Option Termination Date, as the case may be. RECP will have no obligation to contribute or loan funds to the Company in connection with effecting a Call Transaction, but shall cooperate reasonably and in good faith, but at no cost to RECP and without incurring any liability, with the effecting of a closing of such transaction (the Maguire Members' right to effect or cause a Call Transaction shall h▇▇▇▇▇▇▇ter be referred to as the "Call Option"). The Price payable for the Managing Member Interests upon the consummation of the Call Option shall be as described in Section 3.3.
(b) On or before the date that is 90 days prior to the last date on which the Call Option Company’s most recent third-party equity financing may be exercisedused, the Maguire Members or either of them if appropriate. • The Company may deliver written notice (an "Ex▇▇▇▇▇▇▇ Notice") to RECP, on behalf of themselves or the Company, that they desire to extend the Option Termination Date by an additional 12 months (the "Extended Option Termination Date") subject to the satisfaction, as of such date (solely with respect to (ii), (iii) and (iv) below) and as of the Option Termination Date, of the following conditions:
(i) an extension of the term of the New Subordinated Debt has been obtained for no less than one year;
(ii) no Event of Default or Event of Acceleration has occurred and is continuing assign its rights under the terms of the Existing Mortgage Debt, the New Subordinated Debt or any other material agreement (i.e., any contract or Space Lease which involves a payment of over $250,000) or any Major Lease (other than defaults caused by the act or omission of RECP that are not a Performance Default);
(iii) no event causing a Trigger Event or Maguire Event of Default (as defined below) has occurred and is cont▇▇▇▇▇▇;
(iv) RECP has received in cash a cumulative compounded monthly (to the extent not paid on a monthly basis) return of not less than 12% per annum on the remainder of the RECP Capital Contributions after the return to RECP of the Equity Reserve; provided that in calculating the 12% per annum return, there shall be excluded any distributions of the Equity Reserve which may be distributed to RECP;
(v) the Maguire Members shall have purchased the Supplemental Cap and shall ▇▇▇▇ ▇▇llaterally assigned it to the Senior Mezzanine Lender and the Junior Mezzanine Lender in accordance with the terms and conditions of the New Subordinated Debt;
(vi) the Maguire Members shall have paid in full all extension fees required ▇▇▇▇▇ ▇he terms of the New Subordinated Debt in order to extend the maturity of the New Subordinated Debt for a period of 1 year;
(vii) on or prior to the delivery of the Extension Notice, the Maguire Members will have deposited in escrow, with a financial inst▇▇▇▇▇▇▇ designated by RECP and pursuant to an escrow agreement in form and substance satisfactory to RECP (which shall provide, without limitation, for the distribution of the Extension Escrow Amount as provided in Section 3.1(c) below) satisfactory to RECP, an amount equal to the sum of: (1) the difference between the amount described in paragraph (iv) herein and the amounts actually received by RECP as distributions from the Company as of date of the delivery of the Extension Notice; and (2) 150% of the amount required to (x) purchase the Supplemental Cap as of the date of the Extension Notice (except that the Maguire Members shall not be required to deposit such 150% of the co▇▇ ▇▇ ▇he Supplemental Cap if the Maguire Members provide evidence to RECP that they have purchased th▇ ▇▇▇▇▇emental Cap on or before the date of delivery of such Extension Notice) and (y) the corresponding extension fees, as described in paragraphs (v) and (vi) herein (such aggregate amount, the "Extension Escrow Amount"). RECP's determination of the Extension Escrow Amount shall be binding on the parties absent manifest error. Extension Escrow Amounts shall be released as determined by RECP in order to permit satisfaction of the conditions set forth in clauses (iv), (v) and (vi) on or before the Option Termination Date. In addition, on the date of the delivery of the Extension Notice, the Maguire Members will provide RECP with the documentation evidencing ▇▇▇ ▇▇▇osit of the amounts in escrow as provided herein (including, without limitation, the escrow agreement pursuant to which such funds are held in escrow, provided that RECP shall cooperate in good faith in approving the escrow agreement) and documenting the calculation of the amounts deposited in escrow; and
(viii) receipt of certificates from the Maguire Members, in form and substance satisfactory to RECP, confirm▇▇▇ ▇▇▇t all the conditions set forth in clauses (ii) (iii), (vi) and (vii) above have been satisfied as of the date of the Extension Notice and that all conditions set forth in clauses (ii) through (vi) have been satisfied as of the Option Termination Date. If all of the foregoing conditions have been satisfied on the date set forth above, the period for exercise of the Call Option shall be extended from the Option Termination Date to the Extended Option Termination Date. The period from the Effective Date through the Option Termination Date, as the same may be so extended shall hereinafter be referred to as the "Redemption Period". For the avoidance of doubt, any reference to the "lapse" of the Call Option in this Agreement shall refer whole or in part to the time at which the Call Option can no longer be exercised or consummated, as the case may be.
(c) If at any time the Call Option is in effect the Maguire Members provide RECP with the Call Notice but do not consumm▇▇▇ ▇▇▇ Call Transaction on the Call Date, then, as of the close of business (New York City time) on the Call Date, (i) the Maguire Members will on demand pay all the costs and expenses incurr▇▇ ▇▇ ▇ECP in connection thereof; (ii) the Call Option shall, automatically and without any further action, lapse; (iii) a Trigger Event shall be deemed to have occurred; and (iv) any Extension Escrow Amount shall automatically, and without any further action, be transferred to RECP and shall be deemed a distribution in respect of its Managing Member Interest, provided, however, that the Maguire Members will have a one time right to delay the Call Date by ▇▇ ▇▇▇e than 30 days (provided that the Call Date shall in no event be later than the last date on which the Call Transaction could be closed as described in Section 3.1(a) above.
(d) Notwithstanding the provisions of Section 3.1(a) above, in the event: (i)(x) the Maguire Members or any of their respective Affiliates have breached ▇▇ ▇▇▇ in default in respect of any representation, warranty or covenant under this Agreement or any Transaction Document to which they are a party after notice and lapse of any applicable cure periods if such exist (a "Maguire Event of Default"); (y) such Maguire Event of Default does n▇▇ ▇▇▇▇lt in an Event of Default or E▇▇▇▇ ▇▇ Acceleration under any of the Loan Documents; and (z) RECP notifies the Maguire Members of such Maguire Event of Default; or (ii) the death ▇▇ ▇▇▇▇bility of Maguire ▇▇▇ ▇▇e failure of the Maguire Members to appoint within 40 ▇▇▇▇ ▇▇y other person to perfor▇ ▇▇▇ ▇uties and responsibilities with respect to the Property, who is acceptable to RECP at its sole discretion, then subject to Section 3.1(a) above, the Maguire Members may only exercise their rights and effect a Call Opt▇▇▇ (▇▇ the right to effect a Call Option has not otherwise lapsed or expired and has not been suspended as provided herein) so long as the Call Date shall occur no later than three months after the date of either of the events described in (i) or (ii) above.
(e) The Call Option shall immediately and without any further action lapse and be of no further force and effect subject to the provisions of this subsection (e): (i) upon the occurrence of a Maguire Event of Default that is or causes or otherwise results in a▇ ▇▇▇▇▇ of Default or Event of Acceleration under any Loan Documents; or, (ii) upon the occurrence of an Event of Default or Event of Acceleration under any of the Loan Documents as a result of or caused by any actions or inactions of or by the Maguire Members or their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default), unless with respect to each of (i) and (ii) the Maguire Members have obtained from the holder of the relevant Loan D▇▇▇▇▇▇▇s under which such Event(s) of Default has occurred within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration, a ▇▇▇▇▇▇▇ confirmation that such Person irrevocably waives such default or irrevocably agrees that it will not enforce its rights and remedies under such Loan Document with respect to such default (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions), in which case the Call Option shall automatically and without any further action be reinstated.
(f) Unless it has previously lapsed or expired, the Call Option shall immediately and without any further action be suspended and may not be exercised at any time (the "Suspension Period") during the period in which: (X) (i) an Event of Default or Event of Acceleration has occurred and is continuing under any of the Loan Documents that is not attributable to a Maguire Event of Default or any action or inaction of the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default or Event of Acceleration) unless either: (1) such Event of Default or Event of Acceleration has been irrevocably waived in writing by the holder of the relevant Loan Document, or (2) the holder of the relevant Loan Document confirms in writing that it irrevocably agrees not to enforce its rights and remedies under such Loan Document with respect to such Event of Default or Event of Acceleration, in each case of (1) and (2) above within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions) or (ii) an Event of Default or Event of Acceleration has occurred under any of the Loan Documents and such Event of Default has been cured by RECP; (Y) such Event of Default or Event of Acceleration was not caused by RECP (it being understood and agreed that a Performance Default shall not be deemed an Event of Default or Event of Acceleration caused by RECP) unless (I) the Event of Default is a monetary default under the Loan Documents that has no cure period (other than upon maturity), (II) RECP has cured such default pursuant to the emergency provision of Section 7.3(c) of the Operating Agreement and (III) within 5 Business Days after the cure by RECP the Maguire Members reimburse RECP for all costs and expenses incurred i▇ ▇▇▇▇▇g such default plus interest thereon at the rate of 25% per annum; and (Z) RECP is attempting during such Suspension Period to sell or refinance the Property, or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary of the Company. Notwithstanding the foregoing, if a written forbearance agreement that provides for the suspension of remedies by the applicable lender under the relevant Loan Documents is entered into by the Company or the applicable Subsidiary (the period during which the exercise of such remedies is suspended being hereinafter referred to as the "Forbearance Period"), a Suspension Period will be ineffective and will not renew until the later of the date: (m) that is three (3) months prior to the expiration of the applicable Forbearance Period; and (n) on which RECP is attempting to sell or refinance the Property or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary shareholders of the Company (which RECP will confirm in other than the respective Optionholder who has the obligation to transfer the Shares). Such assignment does not require the consent of the Optionholder.
2.11.2 If the “Outlined Terms” provide that the Company has the right to request a notice Good Leaver to transfer the Optionholder’s Shares acquired under the Option back to the Maguire MembersCompany, but the Optionholder becomes a Good Leaver before exercising the Optionholder’s Option and, accordingly, has not acquired any Shares, the Company has a right to cancel such Option, against payment by the Company of a fair compensation for such Option. The fair compensation shall be equal to the Fair Value of the vested Shares underlying such Option as determined in accordance with Section 2.11.1.
2.11.3 If the Optionholder (or the Optionholder’s successor(s). In no event shall ) breach the occurrence and/or existence ▇▇ ▇▇▇ Suspension Period cause obligation to transfer all or part of the Option Termination Date or Shares under Section 2.11.1 back to the Extended Option Termination Date to be extended (as Company against the case may be).
(g) If an Event of Default or Event of Acceleration occurs under any final and binding Fair Value of the Loan Documents at a time when Option Shares determined as provided in 2.11.1, (a) the Call Option has not otherwise lapsed or expired, RECP will (i) in good faith attempt to obtain from the applicable lender a written forbearance agreement in form and substance reasonably satisfactory to RECP; and (ii) Optionholder shall pay to the extent Company a contractual penalty in the Maguire Members are unaware amount of such Event of Default or Event of Acc▇▇▇▇▇▇▇on, give the Maguire Members notice of such Event of Default or Event of Accelera▇▇▇▇. ▇f RECP is unsuccessful in obtaining such a forbearance agreement from the applicable lender within 15 Business Days one per cent of the occurrence Fair Value (regardless of such Event whether the transfer is free of Default charge or Event of Acceleration, at the Maguire Members will be given an opportunity, for a period of 15 Bus▇▇▇▇▇ ▇ays, to obtain such a forbearance agreement Fair Value) per each day the breach is continuing or (in form and substance reasonably satisfactory to RECPb) from such lenders. It will be reasonable for RECP not to approve a forbearance agreement which (x) contemplates any economic change to the Existing Mortgage Loan or the New Subordinated Debt which has an adverse effect on RECP, including, without limitation, the requirement that default or penalty interest be paid during the Forbearance Period, unless it is paid or deposited in escrow with the Company by has the Maguire Members at the time of obtaining right to cancel such forbearance agreement, ▇▇ (▇) requires any adverse economic change to RECP's equity positionOption Shares.
Appears in 1 contract
Sources: Option Agreement
Call Option. (a) At any time no later than 6 months prior to the third anniversary of the Effective Date (the "Option Termination Date"), the Maguire Members or either of them may deliver written notice to RECP (▇▇▇ "Call Notice"), on behalf of themselves or the Company, that they elect to purchase all but not less than all of the Managing Member Interests (including for the purposes of this Section 3, any portion thereof assigned or Transferred by RECP to any other Person) or that the Company will redeem all but not less than all of the Managing Member Interests (the "Call Transaction") for cash on the date specified in the Call Notice (the "Call Date"), which Call Date shall not be more than four months after the date of the Call Notice, provided that in no event shall the Call Date be less than three months prior to the Option Termination Date or the Extended Option Termination Date, as the case may be. RECP will have no obligation to contribute or loan funds to the Company in connection with effecting a Call Transaction, but shall cooperate reasonably and in good faith, but at no cost to RECP and without incurring any liability, with the effecting of a closing of such transaction (the Maguire Members' right to effect or cause a Call Transaction shall h▇▇▇▇▇▇▇ter be referred to as the "Call Option"). The Price payable for the Managing Member Interests upon the consummation of the Call Option shall be as described in Section 3.3.
(b) On or before the date that is 90 days prior to the last date on which the Call Option may be exercised, the Maguire Members or either of them may deliver written notice (an "Ex▇1.2.1 ▇▇▇▇▇▇ Notice") to RECP, on behalf of themselves or the Company, that they desire to extend the Option Termination Date by an additional 12 months (the "Extended Option Termination Date") subject to the satisfaction, as of such date (solely with respect to (ii), (iii) and (iv) below) and as of the Option Termination Date, of the following conditions:
(i) an extension of the term of the New Subordinated Debt has been obtained for no less than one year;
(ii) no Event of Default or Event of Acceleration has occurred and is continuing under the terms of the Existing Mortgage Debt, the New Subordinated Debt or any other material agreement (i.e., any contract or Space Lease which involves a payment of over $250,000) or any Major Lease (other than defaults caused by the act or omission of RECP that are not a Performance Default);
(iii) no event causing a Trigger Event or Maguire Event of Default (as defined below) has occurred and is cont▇▇▇▇▇ undertakes to sell, upon notice served by Sierra Wireless in the form set out in Schedule 1.2.1, all the 2006 Free Shares and 2007 Free Shares in accordance with the conditions described below (the “Call Option”).
1.2.2 The Call Option may be exercised only once for each plan, in compliance with the provisions of Article 7.5 below, at any time during the following time periods: (the “Call Option Exercise Period”), provided that ▇▇;
(iv) RECP has received in cash a cumulative compounded monthly (to the extent not paid on a monthly basis) return of not less than 12% per annum on the remainder of the RECP Capital Contributions after the return to RECP of the Equity Reserve; provided that in calculating the 12% per annum return, there shall be excluded any distributions of the Equity Reserve which may be distributed to RECP;
(v) the Maguire Members shall have purchased the Supplemental Cap and shall ▇▇▇▇ ▇▇llaterally assigned it to the Senior Mezzanine Lender and the Junior Mezzanine Lender in accordance with the terms and conditions of the New Subordinated Debt;
(vi) the Maguire Members shall have paid in full all extension fees required ▇▇▇▇▇ ▇he terms of has not previously served a valid put option notice for the New Subordinated Debt same shares: - From 19 June 2010 to 19 September 2010 as regards the 2006 Free Shares; - From 9 July 2011 to 9 October 2011 as regards the 2007 Free Shares; Being specified that: - in order to extend the maturity of event the New Subordinated Debt for a period of 1 year;
(vii) on or prior to the delivery of the Extension NoticePut Option is deemed void under Article 1.1.8, the Maguire Members will have deposited in escrow, with a financial inst▇▇▇▇▇▇▇ designated by RECP and pursuant to an escrow agreement in form and substance satisfactory to RECP (which shall provide, without limitation, for the distribution of the Extension Escrow Amount as provided in Section 3.1(c) below) satisfactory to RECP, an amount equal to the sum of: (1) the difference between the amount described in paragraph (iv) herein and the amounts actually received by RECP as distributions from the Company as of date of the delivery of the Extension Notice; and (2) 150% of the amount required to (x) purchase the Supplemental Cap as of the date of the Extension Notice (except that the Maguire Members shall not be required to deposit such 150% of the co▇▇ ▇▇ ▇he Supplemental Cap if the Maguire Members provide evidence to RECP that they have purchased th▇ ▇▇▇▇▇emental Cap on or before the date of delivery of such Extension Notice) and (y) the corresponding extension fees, as described in paragraphs (v) and (vi) herein (such aggregate amount, the "Extension Escrow Amount"). RECP's determination of the Extension Escrow Amount time periods indicated above shall be binding on automatically extended by 12 months each; - in the parties absent manifest error. Extension Escrow Amounts shall be released as determined by RECP in order to permit satisfaction of event the conditions set forth in clauses (iv), (v) and (vi) on or before the Option Termination Date. In addition, on the date of the delivery of the Extension Notice, the Maguire Members will provide RECP with the documentation evidencing ▇▇▇ ▇▇▇osit of the amounts in escrow as provided herein (including, without limitation, the escrow agreement pursuant to which such funds are held in escrow, provided that RECP shall cooperate in good faith in approving the escrow agreement) and documenting the calculation of the amounts deposited in escrow; and
(viii) receipt of certificates from the Maguire Members, in form and substance satisfactory to RECP, confirm▇▇▇ ▇▇▇t all the conditions set forth in clauses (ii) (iii), (vi) and (vii) above have been satisfied as of the date of the Extension Notice and that all conditions set forth in clauses (ii) through (vi) have been satisfied as of the Option Termination Date. If all of the foregoing conditions have been satisfied on the date set forth above, the period for exercise of the Call Option is not possible for regulatory reasons (such as during blackout periods), the relevant Call Option Exercised Period shall be automatically extended from the Option Termination Date for a duration equal to the Extended Option Termination Date. The period from the Effective Date through the Option Termination Date, as the same may be so extended shall hereinafter be referred to as the "Redemption Period". For the avoidance of doubt, any reference to the "lapse" of the Call Option in this Agreement shall refer to the time at which the Call Option can no longer be exercised or consummated, as the case may be.
(c) If at any time the Call Option is in effect the Maguire Members provide RECP with the Call Notice but do not consumm▇▇▇ ▇▇▇ Call Transaction on the Call Date, then, as of the close of business (New York City time) on the Call Date, (i) the Maguire Members will on demand pay all the costs and expenses incurr▇▇ ▇▇ ▇ECP in connection thereof; (ii) the Call Option shall, automatically and without any further action, lapse; (iii) a Trigger Event shall be deemed to have occurred; and (iv) any Extension Escrow Amount shall automatically, and without any further action, be transferred to RECP and shall be deemed a distribution in respect of its Managing Member Interest, provided, however, that the Maguire Members will have a one time right to delay the Call Date by ▇▇ ▇▇▇e than 30 days (provided that the Call Date shall in no event be later than the last date on which the Call Transaction could be closed as described in Section 3.1(a) above.
(d) Notwithstanding the provisions of Section 3.1(a) above, in the event: (i)(x) the Maguire Members or any of their respective Affiliates have breached ▇▇ ▇▇▇ in default in respect of any representation, warranty or covenant under this Agreement or any Transaction Document to which they are a party after notice and lapse of any applicable cure periods if such exist (a "Maguire Event of Default"); (y) such Maguire Event of Default does n▇▇ ▇▇▇▇lt in an Event of Default or E▇▇▇▇ ▇▇ Acceleration under any of the Loan Documents; and (z) RECP notifies the Maguire Members of such Maguire Event of Default; or (ii) the death ▇▇ ▇▇▇▇bility of Maguire ▇▇▇ ▇▇e failure of the Maguire Members to appoint within 40 ▇▇▇▇ ▇▇y other person to perfor▇ ▇▇▇ ▇uties and responsibilities with respect to the Property, who is acceptable to RECP at its sole discretion, then subject to Section 3.1(a) above, the Maguire Members may only exercise their rights and effect a Call Opt▇▇▇ (▇▇ the right to effect a Call Option has not otherwise lapsed or expired and has not been suspended as provided herein) so long as the Call Date shall occur no later than three months after the date of either of the events described in (i) or (ii) above.
(e) The Call Option shall immediately and without any further action lapse and be of no further force and effect subject to the provisions of this subsection (e): (i) upon the occurrence of a Maguire Event of Default that is or causes or otherwise results in a▇ ▇▇▇▇▇ of Default or Event of Acceleration under any Loan Documents; or, (ii) upon the occurrence of an Event of Default or Event of Acceleration under any of the Loan Documents as a result of or caused by any actions or inactions of or by the Maguire Members or their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default), unless with respect to each of (i) and (ii) the Maguire Members have obtained from the holder of the relevant Loan D▇▇▇▇▇▇▇s under which such Event(s) of Default has occurred within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration, a ▇▇▇▇▇▇▇ confirmation that such Person irrevocably waives such default or irrevocably agrees that it will not enforce its rights and remedies under such Loan Document with respect to such default (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions), in which case the Call Option shall automatically and without any further action be reinstated.
(f) Unless it has previously lapsed or expired, the Call Option shall immediately and without any further action be suspended and may not be exercised at any time (the "Suspension Period") during the period in which: (X) (i) an Event of Default or Event of Acceleration has occurred and is continuing under any of the Loan Documents that is not attributable to a Maguire Event of Default or any action or inaction of the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default or Event of Acceleration) unless either: (1) such Event of Default or Event of Acceleration has been irrevocably waived in writing by the holder of the relevant Loan Document, or (2) the holder of the relevant Loan Document confirms in writing that it irrevocably agrees not to enforce its rights and remedies under such Loan Document with respect to such Event of Default or Event of Acceleration, in each case of (1) and (2) above within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions) or (ii) an Event of Default or Event of Acceleration has occurred under any of the Loan Documents and such Event of Default has been cured by RECP; (Y) such Event of Default or Event of Acceleration was not caused by RECP (it being understood and agreed that a Performance Default shall not be deemed an Event of Default or Event of Acceleration caused by RECP) unless (I) the Event of Default is a monetary default under the Loan Documents that has no cure period (other than upon maturity), (II) RECP has cured such default pursuant to the emergency provision of Section 7.3(c) of the Operating Agreement and (III) within 5 Business Days after the cure by RECP the Maguire Members reimburse RECP for all costs and expenses incurred i▇ ▇▇▇▇▇g such default plus interest thereon at the rate of 25% per annum; and (Z) RECP is attempting during such Suspension Period to sell or refinance the Property, or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary of the Company. Notwithstanding the foregoing, if a written forbearance agreement that provides for the suspension of remedies by the applicable lender under the relevant Loan Documents is entered into by the Company or the applicable Subsidiary (the period during which the exercise of such remedies is suspended being hereinafter referred to as the "Forbearance Period"), a Suspension Period will be ineffective and will not renew until the later of the date: (m) that is three (3) months prior to the expiration of the applicable Forbearance Period; and (n) on which RECP is attempting to sell or refinance the Property or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary of the Company (which RECP will confirm in a notice to the Maguire Members). In no event shall the occurrence and/or existence ▇▇ ▇▇▇ Suspension Period cause the Option Termination Date or the Extended Option Termination Date to be extended (as the case may be).
(g) If an Event of Default or Event of Acceleration occurs under any of the Loan Documents at a time when the Call Option has was not otherwise lapsed or expired, RECP possible.
1.2.3 The Call Option will (i) in good faith attempt to obtain from become null and void if Sierra Wireless does not exercise it at the applicable lender a written forbearance agreement in form and substance reasonably satisfactory to RECP; and (ii) to latest at the extent the Maguire Members are unaware of such Event of Default or Event of Acc▇▇▇▇▇▇▇on, give the Maguire Members notice of such Event of Default or Event of Accelera▇▇▇▇. ▇f RECP is unsuccessful in obtaining such a forbearance agreement from the applicable lender within 15 Business Days end of the occurrence Call Option Exercise Period, unless the Parties reach an agreement prior to such expiry to extend the Call Option Exercise Period.
1.2.4 The Call Option purchase price of such Event of Default or Event of Acceleration, the Maguire Members each 2006 Free Share and 2007 Free Share will be given an opportunity, for a period €8.50 less the amount of 15 Busdividends or any other distribution of reserves (including any redemption of shares or repayment of capital) received by ▇▇▇▇▇▇ ▇ays▇▇▇▇ prior to the payment made by Sierra Wireless pursuant to Article 1.3.3; provided, however, that this price will be adjusted, as the case may be, to obtain such a forbearance agreement (in form and substance reasonably satisfactory to RECP) from such lenders. It will be reasonable for RECP not to approve a forbearance agreement which (x) contemplates take into account any economic change to split, reverse-split or any other operation on the Existing Mortgage Loan or Company’s shares.
1.2.5 Sierra Wireless accepts the New Subordinated Debt which has benefit of the Call Option as an adverse effect on RECP, includingoption only, without limitationhowever undertaking to purchase the 2006 Free Shares and the 2007 Free Shares until Sierra Wireless serves the notice referred to in Article 1.2.1, at which point Sierra Wireless shall have undertaken to buy the requirement that default or penalty interest be paid during the Forbearance Period, unless it is paid or deposited in escrow with the Company by the Maguire Members at the time of obtaining such forbearance agreement, 2006 Free Shares and/or 2007 Free Shares from ▇▇▇▇▇▇ (▇) requires any adverse economic change to RECP's equity position▇▇▇▇.
Appears in 1 contract
Call Option. 2.11.1. If the “Outlined Terms” provide that the Company has the right to request the Optionholder (or, for the avoidance of doubt, the Optionholder’s or her successors) to transfer all or part of the Optionholder’s Shares acquired under the Option (the “Option Shares”) back to the Company (the “Call Option”) then: • The date on which the Optionholder becomes a Bad Leaver or Good Leaver shall be the “Trigger Date”. • The Company may exercise the Call Option by sending a notice to the Optionholder (the “Option Notice”) within 90 calendar days after the Trigger Date. • If the Company exercises the Call Option, the Optionholder shall take all actions requested by the Company to transfer such Shares to the Company within a period which shall be (a) At any time no later than 6 months prior if the transfer is free of charge: 14 days after the receipt of the Option Notice or (b) if the transfer is at the fair value of Shares (“Fair Value”): 14 days after the determination of Fair Value under this Section 2.11. • The Fair Value shall be determined in good faith by the Company. If the Optionholder does not agree with the Fair Value determined by the Company as set out above, the Optionholder must send a notice (a “Disagreement Notice”) to the third anniversary Company within 7 days after the receipt of Company’s calculation of Fair Value. In such case, the Fair Value shall be determined by an independent expert appointed jointly by the Optionholder and the Company. In case the Parties fail to appoint such expert within 14 days after the Disagreement Notice, the expert will be appointed by the Management Board of the Effective Date (Estonian Private Equity and Venture Capital Association or the "Option Termination Date"), equivalent organization in Estonia or should the Maguire Members latter fail or either not agree to appoint such expert within 14 days after the relevant request of them may deliver written notice to RECP (▇▇▇ "Call Notice"), on behalf of themselves or the Company, that they elect then by the competent court. The Fair Value as determined by the aforementioned expert or competent court shall be final and binding to purchase all but not less than all the Parties. The cost of the Managing Member Interests (including for aforementioned expert shall be paid by the purposes of this Section 3Parties in equal proportions. • In determining the Fair Value, any portion thereof valuation assigned or Transferred by RECP to any other Person) or that the Company will redeem all but not less than all of the Managing Member Interests (the "Call Transaction") for cash on the date specified in the Call Notice (the "Call Date"), which Call Date shall not be more than four months after the date of the Call Notice, provided that in no event shall the Call Date be less than three months prior to the Option Termination Date or the Extended Option Termination Date, as the case may be. RECP will have no obligation to contribute or loan funds to the Company in connection with effecting a Call Transaction, but shall cooperate reasonably and in good faith, but at no cost to RECP and without incurring any liability, with the effecting of a closing of such transaction (the Maguire Members' right to effect or cause a Call Transaction shall h▇▇▇▇▇▇▇ter be referred to as the "Call Option"). The Price payable for the Managing Member Interests upon the consummation of the Call Option shall be as described in Section 3.3.
(b) On or before the date that is 90 days prior to the last date on which the Call Option Company’s most recent third-party equity financing may be exercisedused, the Maguire Members or either of them if appropriate. • The Company may deliver written notice (an "Ex▇▇▇▇▇▇▇ Notice") to RECP, on behalf of themselves or the Company, that they desire to extend the Option Termination Date by an additional 12 months (the "Extended Option Termination Date") subject to the satisfaction, as of such date (solely with respect to (ii), (iii) and (iv) below) and as of the Option Termination Date, of the following conditions:
(i) an extension of the term of the New Subordinated Debt has been obtained for no less than one year;
(ii) no Event of Default or Event of Acceleration has occurred and is continuing assign its rights under the terms of the Existing Mortgage Debt, the New Subordinated Debt or any other material agreement (i.e., any contract or Space Lease which involves a payment of over $250,000) or any Major Lease (other than defaults caused by the act or omission of RECP that are not a Performance Default);
(iii) no event causing a Trigger Event or Maguire Event of Default (as defined below) has occurred and is cont▇▇▇▇▇▇;
(iv) RECP has received in cash a cumulative compounded monthly (to the extent not paid on a monthly basis) return of not less than 12% per annum on the remainder of the RECP Capital Contributions after the return to RECP of the Equity Reserve; provided that in calculating the 12% per annum return, there shall be excluded any distributions of the Equity Reserve which may be distributed to RECP;
(v) the Maguire Members shall have purchased the Supplemental Cap and shall ▇▇▇▇ ▇▇llaterally assigned it to the Senior Mezzanine Lender and the Junior Mezzanine Lender in accordance with the terms and conditions of the New Subordinated Debt;
(vi) the Maguire Members shall have paid in full all extension fees required ▇▇▇▇▇ ▇he terms of the New Subordinated Debt in order to extend the maturity of the New Subordinated Debt for a period of 1 year;
(vii) on or prior to the delivery of the Extension Notice, the Maguire Members will have deposited in escrow, with a financial inst▇▇▇▇▇▇▇ designated by RECP and pursuant to an escrow agreement in form and substance satisfactory to RECP (which shall provide, without limitation, for the distribution of the Extension Escrow Amount as provided in Section 3.1(c) below) satisfactory to RECP, an amount equal to the sum of: (1) the difference between the amount described in paragraph (iv) herein and the amounts actually received by RECP as distributions from the Company as of date of the delivery of the Extension Notice; and (2) 150% of the amount required to (x) purchase the Supplemental Cap as of the date of the Extension Notice (except that the Maguire Members shall not be required to deposit such 150% of the co▇▇ ▇▇ ▇he Supplemental Cap if the Maguire Members provide evidence to RECP that they have purchased th▇ ▇▇▇▇▇emental Cap on or before the date of delivery of such Extension Notice) and (y) the corresponding extension fees, as described in paragraphs (v) and (vi) herein (such aggregate amount, the "Extension Escrow Amount"). RECP's determination of the Extension Escrow Amount shall be binding on the parties absent manifest error. Extension Escrow Amounts shall be released as determined by RECP in order to permit satisfaction of the conditions set forth in clauses (iv), (v) and (vi) on or before the Option Termination Date. In addition, on the date of the delivery of the Extension Notice, the Maguire Members will provide RECP with the documentation evidencing ▇▇▇ ▇▇▇osit of the amounts in escrow as provided herein (including, without limitation, the escrow agreement pursuant to which such funds are held in escrow, provided that RECP shall cooperate in good faith in approving the escrow agreement) and documenting the calculation of the amounts deposited in escrow; and
(viii) receipt of certificates from the Maguire Members, in form and substance satisfactory to RECP, confirm▇▇▇ ▇▇▇t all the conditions set forth in clauses (ii) (iii), (vi) and (vii) above have been satisfied as of the date of the Extension Notice and that all conditions set forth in clauses (ii) through (vi) have been satisfied as of the Option Termination Date. If all of the foregoing conditions have been satisfied on the date set forth above, the period for exercise of the Call Option shall be extended from the Option Termination Date to the Extended Option Termination Date. The period from the Effective Date through the Option Termination Date, as the same may be so extended shall hereinafter be referred to as the "Redemption Period". For the avoidance of doubt, any reference to the "lapse" of the Call Option in this Agreement shall refer whole or in part to the time at which the Call Option can no longer be exercised or consummated, as the case may be.
(c) If at any time the Call Option is in effect the Maguire Members provide RECP with the Call Notice but do not consumm▇▇▇ ▇▇▇ Call Transaction on the Call Date, then, as of the close of business (New York City time) on the Call Date, (i) the Maguire Members will on demand pay all the costs and expenses incurr▇▇ ▇▇ ▇ECP in connection thereof; (ii) the Call Option shall, automatically and without any further action, lapse; (iii) a Trigger Event shall be deemed to have occurred; and (iv) any Extension Escrow Amount shall automatically, and without any further action, be transferred to RECP and shall be deemed a distribution in respect of its Managing Member Interest, provided, however, that the Maguire Members will have a one time right to delay the Call Date by ▇▇ ▇▇▇e than 30 days (provided that the Call Date shall in no event be later than the last date on which the Call Transaction could be closed as described in Section 3.1(a) above.
(d) Notwithstanding the provisions of Section 3.1(a) above, in the event: (i)(x) the Maguire Members or any of their respective Affiliates have breached ▇▇ ▇▇▇ in default in respect of any representation, warranty or covenant under this Agreement or any Transaction Document to which they are a party after notice and lapse of any applicable cure periods if such exist (a "Maguire Event of Default"); (y) such Maguire Event of Default does n▇▇ ▇▇▇▇lt in an Event of Default or E▇▇▇▇ ▇▇ Acceleration under any of the Loan Documents; and (z) RECP notifies the Maguire Members of such Maguire Event of Default; or (ii) the death ▇▇ ▇▇▇▇bility of Maguire ▇▇▇ ▇▇e failure of the Maguire Members to appoint within 40 ▇▇▇▇ ▇▇y other person to perfor▇ ▇▇▇ ▇uties and responsibilities with respect to the Property, who is acceptable to RECP at its sole discretion, then subject to Section 3.1(a) above, the Maguire Members may only exercise their rights and effect a Call Opt▇▇▇ (▇▇ the right to effect a Call Option has not otherwise lapsed or expired and has not been suspended as provided herein) so long as the Call Date shall occur no later than three months after the date of either of the events described in (i) or (ii) above.
(e) The Call Option shall immediately and without any further action lapse and be of no further force and effect subject to the provisions of this subsection (e): (i) upon the occurrence of a Maguire Event of Default that is or causes or otherwise results in a▇ ▇▇▇▇▇ of Default or Event of Acceleration under any Loan Documents; or, (ii) upon the occurrence of an Event of Default or Event of Acceleration under any of the Loan Documents as a result of or caused by any actions or inactions of or by the Maguire Members or their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default), unless with respect to each of (i) and (ii) the Maguire Members have obtained from the holder of the relevant Loan D▇▇▇▇▇▇▇s under which such Event(s) of Default has occurred within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration, a ▇▇▇▇▇▇▇ confirmation that such Person irrevocably waives such default or irrevocably agrees that it will not enforce its rights and remedies under such Loan Document with respect to such default (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions), in which case the Call Option shall automatically and without any further action be reinstated.
(f) Unless it has previously lapsed or expired, the Call Option shall immediately and without any further action be suspended and may not be exercised at any time (the "Suspension Period") during the period in which: (X) (i) an Event of Default or Event of Acceleration has occurred and is continuing under any of the Loan Documents that is not attributable to a Maguire Event of Default or any action or inaction of the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates (where the Maguire Me▇▇▇▇▇ ▇r their respective Affiliates had the right or obli▇▇▇▇▇▇ under this Agreement or the Transaction Documents to take actions to prevent such Event of Default or Event of Acceleration) unless either: (1) such Event of Default or Event of Acceleration has been irrevocably waived in writing by the holder of the relevant Loan Document, or (2) the holder of the relevant Loan Document confirms in writing that it irrevocably agrees not to enforce its rights and remedies under such Loan Document with respect to such Event of Default or Event of Acceleration, in each case of (1) and (2) above within 10 days of the provision of notice to the Maguire Member of such Event of Default or Event of Acceleration (or if such waiver or agreement is conditional, if the Maguire Members provide evidence of satisfaction within such same 10 ▇▇▇ ▇▇riod of any such conditions) or (ii) an Event of Default or Event of Acceleration has occurred under any of the Loan Documents and such Event of Default has been cured by RECP; (Y) such Event of Default or Event of Acceleration was not caused by RECP (it being understood and agreed that a Performance Default shall not be deemed an Event of Default or Event of Acceleration caused by RECP) unless (I) the Event of Default is a monetary default under the Loan Documents that has no cure period (other than upon maturity), (II) RECP has cured such default pursuant to the emergency provision of Section 7.3(c) of the Operating Agreement and (III) within 5 Business Days after the cure by RECP the Maguire Members reimburse RECP for all costs and expenses incurred i▇ ▇▇▇▇▇g such default plus interest thereon at the rate of 25% per annum; and (Z) RECP is attempting during such Suspension Period to sell or refinance the Property, or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary of the Company. Notwithstanding the foregoing, if a written forbearance agreement that provides for the suspension of remedies by the applicable lender under the relevant Loan Documents is entered into by the Company or the applicable Subsidiary (the period during which the exercise of such remedies is suspended being hereinafter referred to as the "Forbearance Period"), a Suspension Period will be ineffective and will not renew until the later of the date: (m) that is three (3) months prior to the expiration of the applicable Forbearance Period; and (n) on which RECP is attempting to sell or refinance the Property or any Subsidiary of the Company or otherwise recapitalize the Company or any Subsidiary shareholders of the Company (which RECP will confirm in other than the respective Optionholder who has the obligation to transfer the Shares). Such assignment does not require the consent of the Optionholder.
2.11.2. If the “Outlined Terms” provide that the Company has the right to request a notice Good Leaver to transfer the Optionholder’s Shares acquired under the Option back to the Maguire MembersCompany, but the Optionholder becomes a Good Leaver before exercising the Optionholder’s Option and, accordingly, has not acquired any Shares, the Company has a right to cancel such Option, against payment by the Company of a fair compensation for such Option. The fair compensation shall be equal to the Fair Value of the vested Shares underlying such Option as determined in accordance with Section 2.11.1.
2.11.3. If the Optionholder (or the Optionholder’s successor(s). In no event shall ) breach the occurrence and/or existence ▇▇ ▇▇▇ Suspension Period cause obligation to transfer all or part of the Option Termination Date or Shares under Section 2.11.1 back to the Extended Option Termination Date to be extended (as Company against the case may be).
(g) If an Event of Default or Event of Acceleration occurs under any final and binding Fair Value of the Loan Documents at a time when Option Shares determined as provided in 2.11.1, (a) the Call Option has not otherwise lapsed or expired, RECP will (i) in good faith attempt to obtain from the applicable lender a written forbearance agreement in form and substance reasonably satisfactory to RECP; and (ii) Optionholder shall pay to the extent Company a contractual penalty in the Maguire Members are unaware amount of such Event of Default or Event of Acc▇▇▇▇▇▇▇on, give the Maguire Members notice of such Event of Default or Event of Accelera▇▇▇▇. ▇f RECP is unsuccessful in obtaining such a forbearance agreement from the applicable lender within 15 Business Days one per cent of the occurrence Fair Value (regardless of such Event whether the transfer is free of Default charge or Event of Acceleration, at the Maguire Members will be given an opportunity, for a period of 15 Bus▇▇▇▇▇ ▇ays, to obtain such a forbearance agreement Fair Value) per each day the breach is continuing or (in form and substance reasonably satisfactory to RECPb) from such lenders. It will be reasonable for RECP not to approve a forbearance agreement which (x) contemplates any economic change to the Existing Mortgage Loan or the New Subordinated Debt which has an adverse effect on RECP, including, without limitation, the requirement that default or penalty interest be paid during the Forbearance Period, unless it is paid or deposited in escrow with the Company by has the Maguire Members at the time of obtaining right to cancel such forbearance agreement, ▇▇ (▇) requires any adverse economic change to RECP's equity positionOption Shares.
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Sources: Option Agreement