Optional Purchase of Defaulted Mortgage Loans (a) With respect to any Mortgage Loan that is delinquent in payment by 90 days or more, the Master Servicer may, at its option, purchase such Mortgage Loan from the Trustee at the Purchase Price therefor; provided, that such Mortgage Loan that becomes 90 days or more delinquent during any given Calendar Quarter shall only be eligible for purchase pursuant to this Section during the period beginning on the first Business Day of the following Calendar Quarter, and ending at the close of business on the second-to-last Business Day of such following Calendar Quarter; and provided, further, that such Mortgage Loan is 90 days or more delinquent at the time of repurchase. Such option if not exercised shall not thereafter be reinstated as to any Mortgage Loan, unless the delinquency is cured and the Mortgage Loan thereafter again becomes delinquent in payment by 90 days or more in a subsequent Calendar Quarter. (b) If at any time the Master Servicer makes a payment to the Certificate Account covering the amount of the Purchase Price for such a Mortgage Loan as provided in clause (a) above, and the Master Servicer provides to the Trustee a certification signed by a Servicing Officer stating that the amount of such payment has been deposited in the Certificate Account, then the Trustee shall execute the assignment of such Mortgage Loan at the request of the Master Servicer, without recourse, to the Master Servicer, which shall succeed to all the Trustee's right, title and interest in and to such Mortgage Loan, and all security and documents relative thereto. Such assignment shall be an assignment outright and not for security. The Master Servicer will thereupon own such Mortgage, and all such security and documents, free of any further obligation to the Trustee or the Certificateholders with respect thereto. If, however, the Master Servicer shall have exercised its right to repurchase a Mortgage Loan pursuant to this Section 4.07 upon the written request of and with funds provided by the Junior Certificateholder and thereupon transferred such Mortgage Loan to the Junior Certificateholder, the Master Servicer shall so notify the Trustee in writing.
Additional Purchase Price Purchaser shall pay to the Sellers an additional amount determined as follows: (i) Purchaser shall pay the Sellers in cash an aggregate amount (collectively, the “Earnout Payment”) equal to (i) the product of (x) 0.75 (the “Multiplier”) multiplied by (y) the Forward EBITDA plus (ii) the positive difference, if any, resulting from (x) the Forward EBITDA minus (y) the TTM Adjusted EBITDA, provided that if the Forward EBITDA is less than the TTM Adjusted EBITDA by $350,000 or more, the Multiplier shall be reduced from 0.75 to 0.5 and provided, further, if the Forward EBITDA exceeds the TTM Adjusted EBITDA by more than $350,000, then the Multiplier shall be increased from 0.75 to 1.0. No later than 45 days after the end of the Earnout Period, the Purchaser shall provide the Sellers with a detailed written calculation together with all supporting documentation that the Sellers may reasonably request, including but not limited to billing invoices, employee time records and salary records and Purchase Orders, of the Forward EBITDA for the Earnout Period (“Purchaser’s Earnout Calculation”). (ii) The Purchaser’ Earnout Calculation shall be prepared in consultation with the Purchaser’s independent auditors. Subject to Section 11.6, Purchaser shall pay to Sellers an aggregate amount of cash equal to the Earnout Payment set forth on Purchaser’s Earnout Calculation within the later of (A) 60 days of the delivery of Purchaser’s Earnout Calculation or (B) the resolution of any dispute related thereto pursuant to this Section 2.3(b). (iii) If either Active Shareholder objects to Purchaser’s Earnout Calculation, he shall deliver a written notice to Purchaser to such effect no later than 5:00 p.m. Eastern Time on the tenth (10th) day following delivery of Purchaser’s Earnout Calculation (such notice, an “Earnout Disagreement Notice”) accompanied by (A) supporting documents, work papers, and other data setting forth in reasonable detail the basis for such Active Shareholder’s disagreement with Purchaser’s Earnout Calculation and (B) a certificate signed by such Active Shareholder certifying that the Earnout Disagreement Notice was delivered in accordance with this Section 2.3(b). Failure of the Active Shareholders to deliver a Disagreement Notice by such date and time shall be deemed to constitute final and conclusive acceptance of all parties hereto of the Earnout Payment set forth in Purchaser’s Earnout Calculation for purposes of this Agreement (iv) If an Active Shareholder timely provides an Earnout Disagreement Notice, the Purchaser and Active Shareholders shall attempt to resolve such disagreement in good faith through discussions and negotiations for a period of at least thirty (30) days. Following the expiration of such thirty (30) day period, either Purchaser or either Active Shareholder may submit the matter to a mutually-agreeable accounting firm as designated arbitrator, for final resolution. The amount of the Earnout Payment determined by such arbitrator shall be final and binding on all parties hereto. (v) In connection with the Earnout Payment, at the Closing, Purchaser shall issue an aggregate of 2,000 shares of Series G Preferred Stock of Purchaser (the “Preferred Stock”) with terms and conditions as set forth in a Certificate of Designation (the “Certificate of Designation”) substantially in the form of Exhibit B hereto (such shares of Preferred Stock, the “Earnout Shares”). Sellers agree that that, as and when Purchaser makes any payment required by this Section 2.3(b), a number of Earnout Shares equal to (A) the amount of such payment divided by (B) $1,000 (with any resulting fractional shares calculated to the nearest three decimal places) shall be automatically cancelled without further action. In the event of any such cancellation, Sellers agree to promptly return any certificate(s) representing Earnout Shares to be marked as “cancelled” (and if less than all Earnout Shares were cancelled, reissuance for the balance of the Earnout Shares that remain outstanding). If the Earnout Payment, as finally determined, is less than $2,000,000, any outstanding Working Capital Shares shall be cancelled upon such final determination. In the event of any redemption of Earnout Shares, the amount of the Earnout Payment owed by Purchaser pursuant to this Agreement shall be reduced by the amount of such redemption. In the event of any conversion of Earnout Shares into shares of Purchaser’s Common Stock, the amount of the Earnout Payment owed by Purchaser pursuant to this Agreement shall be reduced by the fair market value of the shares into which such Earnout Shares were converted (with the fair market value deemed to be as the lowest closing trading price for the thirty days following conversion).
Initial Purchase Price (a) Prior to Closing, the Company shall prepare (and, if requested by Purchaser, in consultation with Purchaser), and at least four Business Days prior to the Closing Date, the Company shall deliver to Purchaser, a written statement (the “Closing Statement”) setting forth: (i) the Company’s good faith estimate and supporting calculations of (I) the Cash Amount (the “Estimated Cash Amount”), (II) the Net Working Capital (the “Estimated Net Working Capital”), (III) the Indebtedness Amount (the “Estimated Indebtedness Amount”) and (IV) the Transaction Expenses Amount (the “Estimated Transaction Expenses Amount”); (ii) payment instructions for the payment of the Closing Consideration; (iii) a list of and, as applicable, payment instructions for the payment of, each of the Transaction Expenses included in the Estimated Transaction Expenses Amount; and (iv) the calculation of the Initial Purchase Price and Closing Consideration derived therefrom. (b) During the preparation of the Closing Statement (if requested by Purchaser) and after the delivery of the Closing Statement, Purchaser and its Representatives shall have a reasonable opportunity to review and to discuss with the Company and its Representatives (a) the Company’s and its Subsidiaries’ working papers and the working papers of the Company’s independent accountants, if any, relating to the preparation of the Closing Statement and the calculation of the Estimated Cash Amount, Estimated Net Working Capital, Estimated Indebtedness Amount and Estimated Transaction Expenses Amount and (b) the relevant books and records of the Company and its Subsidiaries relating to the Cash Amount, the Net Working Capital, the Indebtedness Amount or the Transaction Expenses Amount; and the Company and its Representatives shall reasonably assist Purchaser and its representatives in their review of the Closing Statement and the preparation thereof and reasonably cooperate with respect thereto. In the event Purchaser notifies the Company in writing prior to the Closing that it disputes any amount set forth in the Closing Statement, Purchaser and the Company shall cooperate in good faith to resolve any such dispute as promptly as practicable prior to the Closing Date. If, prior to the Closing, Purchaser and the Company agree in writing to any component on the Closing Statement, then such components of the Closing Statement shall be modified as so agreed. The Closing shall not be delayed if Purchaser and the Company are unable, after any such cooperation, to agree on all of the components of the Closing Statement and, except as otherwise agreed to by Purchaser and the Company in writing, the parties shall use the Closing Statement as delivered by the Company for purposes of determining the Closing Consideration (without limiting any of the provisions of this Agreement, including Article II). (c) From 12:00 a.m. on the Closing Date and until the Closing, the Company shall not, and shall not permit any of its Subsidiaries to, make any dividend or distributions of Cash or incur any Indebtedness or Transaction Expenses (other than as a result of the Financing or as already fully reflected in the Closing Statement) or use any Cash to pay any Transaction Expenses or to repay any Indebtedness. If, as a result of a breach by the Company of any of its covenants contained in this Section 1.02(c), Cash, Transaction Expenses or Indebtedness shall have changed between 11:59 p.m. on the day immediately preceding the Closing Date and the time immediately preceding the Closing, then any such changes shall be included in the calculation of Cash Amount, Transaction Expenses Amount and/or Indebtedness Amount (as the case may be) for purposes of the Closing Statement. (d) For purposes of this Agreement,
Purchase, Sale and Delivery of Offered Securities On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company agrees to sell to the several Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price of $[●] per share, the number of Securities set forth opposite the name of such Underwriter in Schedule A hereto. The Company will deliver the Firm Securities to or as instructed by the Representatives for the accounts of the several Underwriters in a form reasonably acceptable to the Representatives, against payment of the purchase price by the Underwriters in Federal (same day) funds by wire transfer to an account at a bank acceptable to the Representatives drawn to the order of the Company, at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, at 9:00 A.M., New York time, on [●], or at such other time not later than seven full business days thereafter as the Representatives and the Company determine, such time being herein referred to as the “First Closing Date”. For purposes of Rule 15c6-1 under the Exchange Act, the First Closing Date (if later than the otherwise applicable settlement date) shall be the settlement date for payment of funds and delivery of securities for all the Offered Securities sold pursuant to the offering. The Firm Securities so to be delivered or evidence of their issuance will be made available for checking at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, at least 24 hours prior to the First Closing Date. The delivery of the Firm Securities will be made through the facilities of the Depositary Trust Company (the “DTC”) unless the Representatives shall otherwise instruct. In addition, upon written notice from the Representatives given to the Company from time to time not more than 30 days subsequent to the date of the Final Prospectus, the Underwriters may purchase all or less than all of the Optional Securities at the purchase price per share to be paid for the Firm Securities. The Company agrees to sell to the Underwriters the number of shares of Optional Securities specified in such notice and the Underwriters agree, severally and not jointly, to purchase such Optional Securities. Such Optional Securities shall be purchased for the account of each Underwriter in the same proportion as the number of shares of Firm Securities set forth opposite such Underwriter’s name bears to the total number of shares of Firm Securities (subject to adjustment by the Representatives to eliminate fractions) and may be purchased by the Underwriters only for the purpose of covering over-allotments made in connection with the sale of the Firm Securities. No Optional Securities shall be sold or delivered unless the Firm Securities previously have been, or simultaneously are, sold and delivered. The right to purchase the Optional Securities or any portion thereof may be exercised from time to time and to the extent not previously exercised may be surrendered and terminated at any time upon notice by the Representatives to the Company. Each time for the delivery of and payment for the Optional Securities, being herein referred to as an “Optional Closing Date”, which may be the First Closing Date (the First Closing Date and each Optional Closing Date, if any, being sometimes referred to as a “Closing Date”), shall be determined by the Representatives but shall be not later than five full business days after written notice of election to purchase Optional Securities is given. The Company will deliver the Optional Securities being purchased on each Optional Closing Date to or as instructed by the Representatives for the accounts of the several Underwriters, in a form reasonably acceptable to the Representatives against payment of the purchase price therefore in Federal (same day) funds by wire transfer to an account at a bank acceptable to the Representatives drawn to the order of the Company, at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. The certificates for the Optional Securities being purchased on each Optional Closing Date or evidence of their issuance will be made available for checking at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, at a reasonable time in advance of such Optional Closing Date. The delivery of any Optional Securities will be made through the facilities of the DTC unless the Representatives shall otherwise instruct.
Optional Purchase of All Receivables (a) Subject to Section 10.1(a) of the Indenture, on the last day of any Collection Period as of which the Pool Balance shall be less than or equal to 10% of the Original Pool Balance, the Servicer and the Seller each shall have the option to purchase the Owner Trust Estate, other than the Trust Accounts; provided, however, that the amount to be paid for such purchase (as set forth in the following sentence) shall be sufficient to pay the full amount of principal, and interest then due and payable on the Notes. To exercise such option, the Servicer or the Seller, as the case may be, shall deposit pursuant to Section 5.6 in the Collection Account an amount equal to the greater of (i) the amount necessary to pay the full amount of principal and interest then due and payable on the Notes and (ii) the aggregate Purchase Amount for the Receivables (including Liquidated Receivables), plus the appraised value of any other property held by the Trust, (such value to be determined by the Servicer, or if the Trust Collateral Agent has received written notice that there is a material error in the Servicer’s calculation, by an appraiser mutually agreed upon by the Servicer and the Trust Collateral Agent), and shall succeed to all interests in and to the Trust. (b) Upon any sale of the assets of the Trust pursuant to Section 8.1 of the Trust Agreement, the Servicer shall instruct the Trust Collateral Agent to deposit the proceeds from such sale after all payments and reserves therefrom (including the expenses of such sale) have been made (the “Insolvency Proceeds”) in the Collection Account. (c) Notice of any termination of the Trust shall be given by the Servicer to the Owner Trustee, the Trustee, the Trust Collateral Agent and the Rating Agencies as soon as practicable after the Servicer has received notice thereof. (d) Following the satisfaction and discharge of the Indenture and the payment in full of the principal of and interest on the Notes, the Certificateholder will succeed to the rights of the Noteholders hereunder and the Certificateholder will succeed to the rights of, and assume the obligations of, the Trust Collateral Agent pursuant to this Agreement.