First Option. Each First Option Noteholder hereby agrees and acknowledges that its rights to compensation in addition to the purchase prices set forth in this Agreement in connection with any Upfront Purchase, Subsequent Upfront Purchase, Optional Note Purchase (including, for all purposes of this Section 8.1, any Optional Note Purchase completed prior to the date hereof), ECF Purchase and/or Rio Note Purchase of any First Option Note completed in accordance with this Agreement shall be solely as follows: (a) Each First Option Noteholder, to the extent each such First Option Noteholder has sold First Option Notes pursuant to the Upfront Purchase, the Subsequent Upfront Purchase, the Optional Note Purchase, the ECF Purchase and/or the Rio Note Purchase provisions of this Agreement shall have the right (1) in the case of clause (i) below, until six (6) months after the maturity date of the Mortgage Loan (as the same may be extended) and (2) in the case of clause (ii) below, until six (6) months after the date the Mortgage Loan is paid in full, in each case, to participate in payments of all net cash proceeds from: (i) any sale or other disposition of any Individual Property (other than the Rio Las Vegas made prior to the earlier to occur of (A) the repayment in full of the Loan and the Mezzanine Loan or (B) the Maturity Date of the Loan), including as a result of any casualty or condemnation, in each case in excess of the applicable Release Price (as defined in the Mortgage Loan Agreement and each Mezzanine Loan Agreement) with respect to such Individual Property and not otherwise required to be applied to repay the Loan or any Mezzanine Loan; and (ii) any refinancing of the Mortgage Loan and the Mezzanine Loan at any time in which the net proceeds are in excess of the outstanding principal balance of the Mortgage Loan and the Mezzanine Loan at such time. Any such excess proceeds from subclause (i) or (ii) above shall be allocated as follows: (A) first, to the ▇▇▇▇▇▇’▇ Parties in an amount equal to aggregate amounts paid in connection with each Upfront Purchase, Subsequent Upfront Purchase, Optional Note Purchase and ECF Purchase plus an amount that would equate to an annual internal rate of return of twenty percent (20%) thereon, (B) second, twenty percent (20%) of any remaining amounts shall be allocated to the ▇▇▇▇▇▇’▇ Parties and eighty percent (80%) of such remaining amounts shall be allocated to First Option Noteholders (in the individual amounts specified in Section 8.1(b) below) until each individual First Option Noteholder has received an amount equal to the blended amount of the First Option Notes written off by such First Option Noteholder in connection with each Upfront Purchase, Subsequent Upfront Purchase, Rio Note Purchase, Optional Note Purchase and each ECF Purchase (e.g., (i) 70 cents on the dollar with respect to the Upfront Purchase, the Subsequent Upfront Purchase, each Rio Note Purchase and each ECF Purchase of the Junior Mezzanine Notes, (ii) 50 cents on the dollar with respect to each ECF Purchase and/or Rio Note Purchase of the Senior Mezzanine Notes and Specified Mezzanine Notes, etc.), in the following order of priority: (1) first, to First Option Noteholders that have sold First Option Notes that are both Junior Mezzanine Loans and Senior Mezzanine Loans, (2) second, to First Option Noteholders that have sold First Option Notes that are Junior Mezzanine Loans only, (3) third, to First Option Noteholders that have sold First Option Notes that are Senior Mezzanine Loans only, and (C) any remaining amounts to the ▇▇▇▇▇▇’▇ Parties. (b) A First Option Noteholder’s proportionate share of any excess proceeds pursuant to Section 8.1(a) shall be calculated as the face amount of the First Option Notes each such First Option Noteholder has sold as Upfront Purchases, Subsequent Upfront Purchases, Optional Note Purchases, ECF Purchases and/or Rio Note Purchases pursuant to provisions of this Agreement as of the date of the payment divided by the sum of the principal balances of all First Option Notes and Second Option Notes that have been extinguished pursuant to the terms of this Agreement in connection with such Upfront Purchases, Subsequent Upfront Purchases, Optional Note Purchases, ECF Purchases and/or Rio Note Purchases. (c) All payments made pursuant to this Section 8.1 shall be deemed to constitute additional purchase consideration paid to the First Option Noteholders (on account of the Upfront Purchases, Subsequent Upfront Purchases, Optional Note Purchases, ECF Purchases and/or Rio Note Purchases in respect of First Option Notes effected by such First Option Noteholders, as applicable), and in no event shall the First Option Noteholders and any Borrower (or any of the ▇▇▇▇▇▇’▇ Parties) be deemed to be a co-venturer or partner as a result of the making (or receipt) of any such payments. The ▇▇▇▇▇▇’▇ Parties may retain or distribute its allocation of the foregoing excess proceeds (free from any restrictions under the Loan Documents or the Mezzanine Loan Documents). (d) In connection with each Upfront Purchase, Subsequent Upfront Purchase, Optional Note Purchase, ECF Purchase and/or Rio Note Purchase in respect of First Option Notes effected by First Option Noteholders hereunder, a certificate in the form attached hereto as Exhibit H (a “First Option Certificate”) will be issued to each selling First Option Noteholder evidencing such Upfront Purchase, Subsequent Upfront Purchase, Optional Note Purchase, ECF Purchase and/or Rio Note Purchase (which such certificate shall include the identity of the selling Mezzanine Lender, the type and face amount of the Mezzanine Note purchased, the purchase price therefor, and the date of such purchase). The First Option Certificates shall be prepared by or on behalf of the ▇▇▇▇▇▇’▇ Parties. First Option Certificates evidencing the Upfront Purchase, any Optional Note Purchase completed prior to the date hereof and the Subsequent Upfront Purchase will be issued to each applicable First Option Noteholder on the Closing Date. First Option Certificates evidencing any ECF Purchase, Rio Note Purchase or Optional Note Purchase completed on or after the date hereof will be issued to each applicable First Option Noteholder on the date of the closing of any ECF Purchase, Rio Note Purchase or Optional Note Purchase, as applicable. (e) The following transfers and assignments of any First Option Certificate shall be permitted: (i) in connection with a sale, transfer, pledge, hypothecation or assignment of a First Option Note pursuant to and in accordance with the Co-Lender Agreements and the Intercreditor Agreement, any First Option Noteholder may, in its sole and absolute discretion, retain or sell, assign, pledge, hypothecate or transfer to any transferee of such First Option Note any one or more First Option Certificates that have been issued in connection with partial purchases of such First Option Note made pursuant to this Agreement, (ii) a First Option Noteholder may transfer any First Option Certificate to any affiliate of such First Option Noteholder, (iii) a First Option Noteholder may transfer any First Option Certificate to any other First Option Noteholder or Second Option Noteholder (as hereinafter defined) and (iv) a First Option Noteholder may transfer any First Option Certificate to any ▇▇▇▇▇▇’▇ Party or affiliate thereof. A First Option Noteholder shall promptly after any such permitted transfer, pledge or assignment of a First Option Certificate provide written notice to Servicer as to the identity and contact information of the new holder of such First Option Certificate. No other sales, pledges, transfers or assignments of First Option Certificates shall be permitted hereunder, and any First Option Certificate submitted for payment pursuant to the terms of this Agreement or held by any person other than the First Option Noteholder to whom such First Option Certificate was issued or any such permitted transferee of a First Option Certificate will be disregarded (and, in such event, any payment payable in respect of any such First Option Certificate shall be paid to (i) the most recent permitted transferee identified in the First Option Register (as herein defined) or (ii) if no such permitted transferees are identified in the First Option Register, the First Option Noteholder to whom such First Option Certificate was issued). (f) Servicer shall maintain a register (the “First Option Register”) in which will be recorded the identity and contact information for each holder to whom a First Option Certificate is issued, the permitted transferees thereof and all payments, if any, made in connection therewith. The First Option Register shall be conclusive absent manifest error and the ▇▇▇▇▇▇’▇ Parties may rely on it in making payments to holders of First Option Certificates. The ▇▇▇▇▇▇’▇ Parties shall be permitted to review a copy of the register upon written request made to Servicer. The ▇▇▇▇▇▇’▇ Parties shall provide each holder of a First Option Certificate written notice of any availability of funds to be disbursed pursuant to a First Option Noteholder’s rights under this Section 8.1 not less than fifteen (15) Business Days prior to the date in such notice for such disbursement. Subject to the provisions of Section 8.1(e), amounts payable to a First Option Noteholder under this Section 8.1 shall be payable to then current holder of each First Option Certificate. Each payment under this Section 8.1 to be made to First Option Noteholders will be calculated and determined based on the information contained in each First Option Certificate submitted to the ▇▇▇▇▇▇’▇ Parties at least five (5) Business Days prior to the date designated by the ▇▇▇▇▇▇’▇ Parties for such payment.
Appears in 2 contracts
Sources: Note Sales Agreement, Note Sales Agreement (Harrahs Entertainment Inc)
First Option. Each First Except for (i) Drag-Along 100% Sales or Drag-Along 50% Sales made in accordance with Article II or (ii) sales upon exercise of a Call Option Noteholder hereby agrees pursuant to Section 1.8, no Employee Party shall Transfer any Shares except as specifically permitted by this Section 1.7. If at any time any Employee Party desires to Transfer all or any part of the Shares held by such Person (an "EMPLOYEE SELLING PARTY") (other than in accordance with Section 1.7.2) such Employee Selling Party shall obtain an irrevocable and acknowledges that unconditional bona fide arm's length written offer (the "BONA FIDE OFFER") for the purchase of such Shares for cash, cash equivalents, or a debt instrument with commercially reasonable terms from a third party unaffiliated with such Employee Selling Party (an "OUTSIDE PARTY"), following which the Employee Selling Party shall provide written notice (the "SALE NOTICE") to each of (i) Purchaser (together with its rights assigns, the "PURCHASER BUYER") and (ii) the Company (each of Purchaser Buyer and the Company a "POTENTIAL BUYER") setting forth such desire to compensation in addition Transfer such Shares, which Sale Notice shall be accompanied by a photocopy or other facsimile of the Bona Fide Offer and shall set forth the name and address of the Outside Party and the price and terms of such Bona Fide Offer. Upon the giving of such Sale Notice, each Potential Buyer shall, subject to the priorities set forth below, have the option (which option (the "PURCHASE OPTION"), in the case of Purchaser only, shall be freely assignable at Purchaser's sole discretion) to purchase prices all or any portion of such Shares specified in the Sale Notice, on the same terms and conditions, including but not limited to the offer price for the Shares as set forth in this Agreement in connection with any Upfront Purchasethe Bona Fide Offer. Each Potential Buyer shall have thirty (30) days from receipt of the Sale Notice to provide written notice (the "ACCEPTANCE NOTICE") to such Employee Selling Party of its desire to exercise such Purchase Option. If more than one Potential Buyer shall deliver an Acceptance Notice within such thirty (30) day period, Subsequent Upfront Purchase, Optional Note Purchase (including, for all purposes of this Section 8.1, any Optional Note Purchase completed prior the priority as among the Potential Buyers to match the date hereof), ECF Purchase and/or Rio Note Purchase of any First Option Note completed in accordance with this Agreement Bona Fide Offer and purchase such Shares shall be solely as follows:
(a) Each First Option Noteholderbe, to the extent each such First Option Noteholder has sold First Option Notes pursuant to the Upfront PurchasePotential Buyers have delivered Acceptance Notices, FIRST, the Subsequent Upfront PurchasePurchaser Buyer and, SECOND, the Optional Note PurchaseCompany. If a Potential Buyer or Potential Buyers, as applicable, elects to purchase, all or any portion of the Shares covered by the Bona Fide Offer on the terms and conditions set forth in the Sale Notice, the ECF Purchase and/or Potential Buyer(s) entitled to purchase such Shares (the Rio Note Purchase provisions of this Agreement shall have the right (1) in the case of clause (i) below, until six (6) months after the maturity date of the Mortgage Loan (as the same may be extended) and (2) in the case of clause (ii) below, until six (6) months after the date the Mortgage Loan is paid in full, in each case, to participate in payments of all net cash proceeds from:
(i) any sale or other disposition of any Individual Property (other than the Rio Las Vegas made prior to the earlier to occur of (A) the repayment in full of the Loan and the Mezzanine Loan or (B) the Maturity Date of the Loan"CHOSEN BUYER(S), including as a result of any casualty or condemnation, in each case in excess of the applicable Release Price (as defined in the Mortgage Loan Agreement and each Mezzanine Loan Agreement) with respect to such Individual Property and not otherwise required to be applied to repay the Loan or any Mezzanine Loan; and
(ii) any refinancing of the Mortgage Loan and the Mezzanine Loan at any time in which the net proceeds are in excess of the outstanding principal balance of the Mortgage Loan and the Mezzanine Loan at such time. Any such excess proceeds from subclause (i) or (ii) above shall be allocated as follows:
(A) first, to the ▇▇▇▇▇▇’▇ Parties in an amount equal to aggregate amounts paid in connection with each Upfront Purchase, Subsequent Upfront Purchase, Optional Note Purchase and ECF Purchase plus an amount that would equate to an annual internal rate of return of twenty percent (20%) thereon,
(B) second, twenty percent (20%) of any remaining amounts shall be allocated to the ▇▇▇▇▇▇’▇ Parties and eighty percent (80%) of such remaining amounts shall be allocated to First Option Noteholders (in the individual amounts specified in Section 8.1(b) below) until each individual First Option Noteholder has received an amount equal to the blended amount of the First Option Notes written off by such First Option Noteholder in connection with each Upfront Purchase, Subsequent Upfront Purchase, Rio Note Purchase, Optional Note Purchase and each ECF Purchase (e.g., (i) 70 cents on the dollar with respect to the Upfront Purchase, the Subsequent Upfront Purchase, each Rio Note Purchase and each ECF Purchase of the Junior Mezzanine Notes, (ii) 50 cents on the dollar with respect to each ECF Purchase and/or Rio Note Purchase of the Senior Mezzanine Notes and Specified Mezzanine Notes, etc.), in the following order of priority:
(1) first, to First Option Noteholders that have sold First Option Notes that are both Junior Mezzanine Loans and Senior Mezzanine Loans,
(2) second, to First Option Noteholders that have sold First Option Notes that are Junior Mezzanine Loans only,
(3) third, to First Option Noteholders that have sold First Option Notes that are Senior Mezzanine Loans only, and
(C) any remaining amounts to the ▇▇▇▇▇▇’▇ Parties.
(b) A First Option Noteholder’s proportionate share of any excess proceeds pursuant to Section 8.1(a") shall be calculated as the face amount of the First Option Notes each such First Option Noteholder has sold as Upfront Purchases, Subsequent Upfront Purchases, Optional Note Purchases, ECF Purchases and/or Rio Note Purchases pursuant to provisions of this Agreement as of the date of the payment divided by the sum of the principal balances of all First Option Notes and Second Option Notes that have been extinguished pursuant to the terms of this Agreement in connection with such Upfront Purchases, Subsequent Upfront Purchases, Optional Note Purchases, ECF Purchases and/or Rio Note Purchases.
(c) All payments made pursuant to this Section 8.1 shall be deemed to constitute additional purchase consideration paid to the First Option Noteholders (on account of the Upfront Purchases, Subsequent Upfront Purchases, Optional Note Purchases, ECF Purchases and/or Rio Note Purchases in respect of First Option Notes effected by such First Option Noteholders, as applicable), and in no event shall the First Option Noteholders and any Borrower (or any of the ▇▇▇▇▇▇’▇ Parties) be deemed to be a co-venturer or partner as a result of the making (or receipt) of any such payments. The ▇▇▇▇▇▇’▇ Parties may retain or distribute its allocation of the foregoing excess proceeds (free from any restrictions under the Loan Documents or the Mezzanine Loan Documents).
(d) In connection with each Upfront Purchase, Subsequent Upfront Purchase, Optional Note Purchase, ECF Purchase and/or Rio Note Purchase in respect of First Option Notes effected by First Option Noteholders hereunder, a certificate in the form attached hereto as Exhibit H (a “First Option Certificate”) will be issued to each selling First Option Noteholder evidencing such Upfront Purchase, Subsequent Upfront Purchase, Optional Note Purchase, ECF Purchase and/or Rio Note Purchase (which such certificate shall include the identity of the selling Mezzanine Lender, the type and face amount of the Mezzanine Note purchased, the purchase price therefor, and the date of such purchase). The First Option Certificates shall be prepared by or on behalf of the ▇▇▇▇▇▇’▇ Parties. First Option Certificates evidencing the Upfront Purchase, any Optional Note Purchase completed prior to the date hereof and the Subsequent Upfront Purchase will be issued to each applicable First Option Noteholder on the Closing Date. First Option Certificates evidencing any ECF Purchase, Rio Note Purchase or Optional Note Purchase completed on or after the date hereof will be issued to each applicable First Option Noteholder on the date of the closing of any ECF Purchase, Rio Note Purchase or Optional Note Purchase, as applicable.
(e) The following transfers and assignments of any First Option Certificate shall be permitted: (i) in connection with a sale, transfer, pledge, hypothecation or assignment of a First Option Note pursuant to and determined in accordance with the Co-Lender Agreements priorities set forth, if applicable, above and the Intercreditor Agreementsuch Chosen Buyer(s) shall be obligated to purchase, any First Option Noteholder may, in its sole and absolute discretion, retain or such Employee Selling Party shall be obligated to sell, assign, pledge, hypothecate or transfer to any transferee of such First Option Note any one or more First Option Certificates that have been issued Shares at the price and terms specified in connection with partial purchases of such First Option Note made pursuant to this Agreement, (ii) a First Option Noteholder may transfer any First Option Certificate to any affiliate of such First Option Noteholder, (iii) a First Option Noteholder may transfer any First Option Certificate to any other First Option Noteholder or Second Option Noteholder (as hereinafter defined) and (iv) a First Option Noteholder may transfer any First Option Certificate to any ▇▇▇▇▇▇’▇ Party or affiliate thereofthe Sale Notice. A First Option Noteholder shall promptly after any such permitted transfer, pledge or assignment of a First Option Certificate provide written notice to Servicer as to the identity and contact information The closing of the new holder of such First Option Certificate. No other sales, pledges, transfers or assignments of First Option Certificates purchase by the Chosen Buyer(s) shall be permitted hereunder, and any First Option Certificate submitted for payment pursuant to held on a Business Day within ninety days (90) days after the terms of this Agreement or held by any person other than the First Option Noteholder to whom such First Option Certificate was issued or any such permitted transferee of a First Option Certificate will be disregarded (and, in such event, any payment payable in respect of any such First Option Certificate shall be paid to (i) the most recent permitted transferee identified in the First Option Register (as herein defined) or (ii) if no such permitted transferees are identified in the First Option Register, the First Option Noteholder to whom such First Option Certificate was issued).
(f) Servicer shall maintain a register (the “First Option Register”) in which will be recorded the identity and contact information for each holder to whom a First Option Certificate is issued, the permitted transferees thereof and all payments, if any, made in connection therewith. The First Option Register shall be conclusive absent manifest error and the ▇▇▇▇▇▇’▇ Parties may rely on it in making payments to holders of First Option Certificates. The ▇▇▇▇▇▇’▇ Parties shall be permitted to review a copy giving of the register upon written request made to Servicer. The ▇▇▇▇▇▇’▇ Parties shall provide each holder relevant Acceptance Notice, at the principal offices of a First Option Certificate written notice of any availability of funds to be disbursed pursuant to a First Option Noteholder’s rights under this Section 8.1 not less than fifteen (15) Business Days prior to the date in such notice for such disbursement. Subject to the provisions of Section 8.1(e), amounts payable to a First Option Noteholder under this Section 8.1 shall be payable to then current holder of each First Option Certificate. Each payment under this Section 8.1 to be made to First Option Noteholders will be calculated and determined based on the information contained in each First Option Certificate submitted to the ▇▇▇▇▇▇’▇ Parties at least five (5) Business Days prior to the date designated by the ▇▇▇▇▇▇’▇ Parties for such payment.Chosen
Appears in 1 contract
Sources: Securityholders Agreement (Petco Animal Supplies Inc)
First Option. Each First Except for (i) Tag-Along Sales made in accordance with Section 2.4 or (ii) Drag-Along 100% Sales or Drag-Along 50% Sales made in accordance with Article III or (iii) sales upon exercise of a Call Option Noteholder hereby agrees pursuant to Section 2.9, no Management Party shall Transfer any Shares except as specifically permitted by this Section 2.8. If at any time any Management Party desires to Transfer all or any part of the Shares held by such Person (a "MANAGEMENT SELLING PARTY") (other than in accordance with Section 2.8.4) such Management Selling Party shall obtain an irrevocable and acknowledges that unconditional bona fide arm's length written offer (the "BONA FIDE OFFER") for the purchase of such Shares for cash, cash equivalents, or a debt instrument with commercially reasonable terms from a third party unaffiliated with such Management Selling Party (an "OUTSIDE PARTY"), following which the Management Selling Party shall provide written notice (the "SALE NOTICE") to each of (i) Purchaser (together with its rights assigns, the "PURCHASER BUYER") and (ii) the Company (each of Purchaser Buyer and the Company a "POTENTIAL BUYER") setting forth such desire to compensation in addition Transfer such Shares, which Sale Notice shall be accompanied by a photocopy or other facsimile of the Bona Fide Offer and shall set forth the name and address of the Outside Party and the price and terms of such Bona Fide Offer. Upon the giving of such Sale Notice, each Potential Buyer shall, subject to the priorities set forth below, have the option (which option (the "PURCHASE OPTION"), in the case of Purchaser only, shall be freely assignable at Purchaser's sole discretion) to purchase prices all or any portion of such Shares specified in the Sale Notice, on the same terms and conditions, including but not limited to the offer price for the Shares as set forth in this Agreement in connection with any Upfront Purchasethe Bona Fide Offer. Each Potential Buyer shall have thirty (30) days from receipt of the Sale Notice to provide written notice (the "ACCEPTANCE NOTICE") to such Management Selling Party of its desire to exercise such Purchase Option. If more than one Potential Buyer shall deliver an Acceptance Notice within such thirty (30) day period, Subsequent Upfront Purchase, Optional Note Purchase (including, for all purposes of this Section 8.1, any Optional Note Purchase completed prior the priority as among the Potential Buyers to match the date hereof), ECF Purchase and/or Rio Note Purchase of any First Option Note completed in accordance with this Agreement Bona Fide Offer and purchase such Shares shall be solely as follows:
(a) Each First Option Noteholderbe, to the extent each such First Option Noteholder has sold First Option Notes pursuant to the Upfront PurchasePotential Buyers have delivered Acceptance Notices, FIRST, the Subsequent Upfront PurchasePurchaser Buyer and, SECOND, the Optional Note PurchaseCompany. If a Potential Buyer or Potential Buyers, as applicable, elects to purchase, all or any portion of the Shares covered by the Bona Fide Offer on the terms and conditions set forth in the Sale Notice, the ECF Purchase and/or Potential Buyer(s) entitled to purchase such Shares (the Rio Note Purchase provisions of this Agreement shall have the right (1) in the case of clause (i) below, until six (6) months after the maturity date of the Mortgage Loan (as the same may be extended) and (2) in the case of clause (ii) below, until six (6) months after the date the Mortgage Loan is paid in full, in each case, to participate in payments of all net cash proceeds from:
(i) any sale or other disposition of any Individual Property (other than the Rio Las Vegas made prior to the earlier to occur of (A) the repayment in full of the Loan and the Mezzanine Loan or (B) the Maturity Date of the Loan"CHOSEN BUYER(S), including as a result of any casualty or condemnation, in each case in excess of the applicable Release Price (as defined in the Mortgage Loan Agreement and each Mezzanine Loan Agreement) with respect to such Individual Property and not otherwise required to be applied to repay the Loan or any Mezzanine Loan; and
(ii) any refinancing of the Mortgage Loan and the Mezzanine Loan at any time in which the net proceeds are in excess of the outstanding principal balance of the Mortgage Loan and the Mezzanine Loan at such time. Any such excess proceeds from subclause (i) or (ii) above shall be allocated as follows:
(A) first, to the ▇▇▇▇▇▇’▇ Parties in an amount equal to aggregate amounts paid in connection with each Upfront Purchase, Subsequent Upfront Purchase, Optional Note Purchase and ECF Purchase plus an amount that would equate to an annual internal rate of return of twenty percent (20%) thereon,
(B) second, twenty percent (20%) of any remaining amounts shall be allocated to the ▇▇▇▇▇▇’▇ Parties and eighty percent (80%) of such remaining amounts shall be allocated to First Option Noteholders (in the individual amounts specified in Section 8.1(b) below) until each individual First Option Noteholder has received an amount equal to the blended amount of the First Option Notes written off by such First Option Noteholder in connection with each Upfront Purchase, Subsequent Upfront Purchase, Rio Note Purchase, Optional Note Purchase and each ECF Purchase (e.g., (i) 70 cents on the dollar with respect to the Upfront Purchase, the Subsequent Upfront Purchase, each Rio Note Purchase and each ECF Purchase of the Junior Mezzanine Notes, (ii) 50 cents on the dollar with respect to each ECF Purchase and/or Rio Note Purchase of the Senior Mezzanine Notes and Specified Mezzanine Notes, etc.), in the following order of priority:
(1) first, to First Option Noteholders that have sold First Option Notes that are both Junior Mezzanine Loans and Senior Mezzanine Loans,
(2) second, to First Option Noteholders that have sold First Option Notes that are Junior Mezzanine Loans only,
(3) third, to First Option Noteholders that have sold First Option Notes that are Senior Mezzanine Loans only, and
(C) any remaining amounts to the ▇▇▇▇▇▇’▇ Parties.
(b) A First Option Noteholder’s proportionate share of any excess proceeds pursuant to Section 8.1(a") shall be calculated as the face amount of the First Option Notes each such First Option Noteholder has sold as Upfront Purchases, Subsequent Upfront Purchases, Optional Note Purchases, ECF Purchases and/or Rio Note Purchases pursuant to provisions of this Agreement as of the date of the payment divided by the sum of the principal balances of all First Option Notes and Second Option Notes that have been extinguished pursuant to the terms of this Agreement in connection with such Upfront Purchases, Subsequent Upfront Purchases, Optional Note Purchases, ECF Purchases and/or Rio Note Purchases.
(c) All payments made pursuant to this Section 8.1 shall be deemed to constitute additional purchase consideration paid to the First Option Noteholders (on account of the Upfront Purchases, Subsequent Upfront Purchases, Optional Note Purchases, ECF Purchases and/or Rio Note Purchases in respect of First Option Notes effected by such First Option Noteholders, as applicable), and in no event shall the First Option Noteholders and any Borrower (or any of the ▇▇▇▇▇▇’▇ Parties) be deemed to be a co-venturer or partner as a result of the making (or receipt) of any such payments. The ▇▇▇▇▇▇’▇ Parties may retain or distribute its allocation of the foregoing excess proceeds (free from any restrictions under the Loan Documents or the Mezzanine Loan Documents).
(d) In connection with each Upfront Purchase, Subsequent Upfront Purchase, Optional Note Purchase, ECF Purchase and/or Rio Note Purchase in respect of First Option Notes effected by First Option Noteholders hereunder, a certificate in the form attached hereto as Exhibit H (a “First Option Certificate”) will be issued to each selling First Option Noteholder evidencing such Upfront Purchase, Subsequent Upfront Purchase, Optional Note Purchase, ECF Purchase and/or Rio Note Purchase (which such certificate shall include the identity of the selling Mezzanine Lender, the type and face amount of the Mezzanine Note purchased, the purchase price therefor, and the date of such purchase). The First Option Certificates shall be prepared by or on behalf of the ▇▇▇▇▇▇’▇ Parties. First Option Certificates evidencing the Upfront Purchase, any Optional Note Purchase completed prior to the date hereof and the Subsequent Upfront Purchase will be issued to each applicable First Option Noteholder on the Closing Date. First Option Certificates evidencing any ECF Purchase, Rio Note Purchase or Optional Note Purchase completed on or after the date hereof will be issued to each applicable First Option Noteholder on the date of the closing of any ECF Purchase, Rio Note Purchase or Optional Note Purchase, as applicable.
(e) The following transfers and assignments of any First Option Certificate shall be permitted: (i) in connection with a sale, transfer, pledge, hypothecation or assignment of a First Option Note pursuant to and determined in accordance with the Co-Lender Agreements priorities set forth, if applicable, above and the Intercreditor Agreement, any First Option Noteholder may, in its sole and absolute discretion, retain or sell, assign, pledge, hypothecate or transfer to any transferee of such First Option Note any one or more First Option Certificates that have been issued in connection with partial purchases of such First Option Note made pursuant to this Agreement, (iiChosen Buyer(s) a First Option Noteholder may transfer any First Option Certificate to any affiliate of such First Option Noteholder, (iii) a First Option Noteholder may transfer any First Option Certificate to any other First Option Noteholder or Second Option Noteholder (as hereinafter defined) and (iv) a First Option Noteholder may transfer any First Option Certificate to any ▇▇▇▇▇▇’▇ Party or affiliate thereof. A First Option Noteholder shall promptly after any such permitted transfer, pledge or assignment of a First Option Certificate provide written notice to Servicer as to the identity and contact information of the new holder of such First Option Certificate. No other sales, pledges, transfers or assignments of First Option Certificates shall be permitted hereunderobligated to purchase, and any First Option Certificate submitted for payment pursuant to the terms of this Agreement or held by any person other than the First Option Noteholder to whom such First Option Certificate was issued or any such permitted transferee of a First Option Certificate will be disregarded (and, in such event, any payment payable in respect of any such First Option Certificate Management Selling Party shall be paid to (i) the most recent permitted transferee identified in the First Option Register (as herein defined) or (ii) if no such permitted transferees are identified in the First Option Register, the First Option Noteholder to whom such First Option Certificate was issued).
(f) Servicer shall maintain a register (the “First Option Register”) in which will be recorded the identity and contact information for each holder to whom a First Option Certificate is issued, the permitted transferees thereof and all payments, if any, made in connection therewith. The First Option Register shall be conclusive absent manifest error and the ▇▇▇▇▇▇’▇ Parties may rely on it in making payments to holders of First Option Certificates. The ▇▇▇▇▇▇’▇ Parties shall be permitted to review a copy of the register upon written request made to Servicer. The ▇▇▇▇▇▇’▇ Parties shall provide each holder of a First Option Certificate written notice of any availability of funds to be disbursed pursuant to a First Option Noteholder’s rights under this Section 8.1 not less than fifteen (15) Business Days prior to the date in such notice for such disbursement. Subject to the provisions of Section 8.1(e), amounts payable to a First Option Noteholder under this Section 8.1 shall be payable to then current holder of each First Option Certificate. Each payment under this Section 8.1 to be made to First Option Noteholders will be calculated and determined based on the information contained in each First Option Certificate submitted to the ▇▇▇▇▇▇’▇ Parties at least five (5) Business Days prior to the date designated by the ▇▇▇▇▇▇’▇ Parties for such payment.be
Appears in 1 contract