Purchase Option. (a) Upon the occurrence and during the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6. (b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale. (c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time). (d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized. (e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 11 contracts
Sources: Intercreditor Agreement (FiberTower CORP), Omnibus Intercreditor Agreement (FiberTower CORP), Indenture (FiberTower CORP)
Purchase Option. The Company hereby agrees to issue and sell to the Representative (aand/or its designees) Upon on the occurrence and during Closing Date an option (“Representative’s Purchase Option”) for the continuance purchase of an Event aggregate of Default or 150,000 Units (“Representative’s Units”) for an event aggregate purchase price of default under the Working Capital Facility Documents that is not cured or waived within thirty $100. Each Representative Unit shall consist of one share of Common Stock and one warrant (30) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable PortionRepresentative’s Warrant”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent Each Representative’s Warrant shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election entitle its holder to purchase such portion one share of Common Stock for $7.50 during the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than period commencing on the later of of: (i) thirty (30) days after the receipt by consummation of an Acquisition Transaction, Post-Acquisition Tender Offer or Post-Acquisition Automatic Trust Liquidation, as the Working Capital Facility Collateral Agent of the Exercise Noticecase may be, and or (ii) ten (10) days after receipt one year from the Effective Date and ending on the later of the five-year anniversary of the Effective Date or, if earlier redeemed by the Interim Notes Collateral Agent Company in accordance therewith. The Representative’s Purchase Option shall be exercisable, in whole or Pari Passu Collateral Agentin part, commencing on the later of the consummation of an Acquisition Transaction, Post-Acquisition Tender Offer or Post-Acquisition Automatic Trust Liquidation, as applicablethe case may be, or one year from the Effective Date and expiring on the five-year anniversary of the information required Effective Date at an initial exercise price per Representative’s Unit of $12.50, which is equal to be delivered pursuant to clauses one hundred and twenty five percent (a) and (b125%) of the definition public offering price of a Unit. The Representative’s Purchase Option, the Representative’s Units, the Representative’s Warrants and the shares of Common Stock issuable upon exercise of the Representative’s Warrants are hereinafter referred to collectively as the “Qualified Indemnification ClaimRepresentative’s Securities.” (The Public Securities and the later Representative’s Securities are hereinafter referred to collectively as the “Securities.” The Representative understands and agrees that there are significant restrictions pursuant to FINRA Rule 5110 against transferring the Representative’s Purchase Option and the underlying securities during the first 180 days after the Effective Date, and, by its acceptance of the Representative’s Units, the Representative agrees that it will not, sell, transfer, assign, pledge or hypothecate the Representative’s Purchase Option, or any portion thereof, or engage in any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of such dates, securities for a period of 180 days following the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell Effective Date to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or anyone other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall than (i) pay to an Underwriter or a selected dealer in connection with the Working Capital Facility Collateral AgentOffering, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral a bona fide officer or partner of the Representative or of any such Underwriter or selected dealer; and only if any such transferee agrees to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final nonlock-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained up restrictions set forth in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, 1.4.1 in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateralwriting.
Appears in 5 contracts
Sources: Underwriting Agreement (Selway Capital Acquisition Corp.), Underwriting Agreement (Selway Capital Acquisition Corp.), Underwriting Agreement (Selway Capital Acquisition Corp.)
Purchase Option. (a) Upon If (i) your employment with the occurrence and during Company or a Related Entity terminates for any reason at any time or (ii) a Sale of the continuance Company or a Change of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) daysControl occurs, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, Company (and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, its designees) shall have the option at any time upon five (5the “Purchase Option”) Business Days’ prior written notice to purchase, and you or your transferees (or your executor or the Working Capital Facility Collateral Agent administrator of your estate or the Person who acquired the right to elect to purchase a portion exercise the Option by transfer, bequest or inheritance, in the event of your death, or your legal representative in the Working Capital Facility Indebtedness from the Working Capital Facility Lendersevent of your incapacity (hereinafter, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each casecollectively with you, the “Purchasable PortionGrantor”)) shall sell to the Company and/or its assignee(s), all or any portion (at the Company’s option) of the Option Shares and/or the Option held by the Grantor (such Option Shares and Option collectively being referred to as the “Purchasable Shares”), subject to the Company’s compliance with the conditions hereinafter set forth.
(b) The Company shall give notice in writing to the Grantor of the exercise of the Purchase Option within six (6) months from the date of the termination of your employment or engagement or such Sale of the Company or Change of Control. Such notice shall state the number of Purchasable Shares to be purchased and the determination of the Board of Directors of the Fair Market Value per share of such Purchasable Shares. If no notice is given within the time limit specified above, the Purchase Option shall terminate.
(an “Exercise Notice”c) from The purchase price to be paid for the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, Purchasable Shares purchased pursuant to the Working Capital Facility Collateral Agent Purchase Option shall be, in the case of any Option Shares, an amount equal to the Fair Market Value per share as of the date of the notice of exercise of the Purchase Option multiplied by the number of shares being purchased, and in the case of the Option (including Vested and Nonvested Shares subject to such Option), an amount equal to the Fair Market Value per share less the applicable per share Exercise Price multiplied by the number of Vested Shares subject to such Option which are being purchased. Any purchase price shall be irrevocable; provided, that paid in cash. The closing of such purchase shall take place at the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right Company’s principal executive offices within ten (10) days following receipt of after the information required purchase price has been determined. At such closing, the Grantor shall deliver to be delivered pursuant to clauses the purchasers the certificates or instruments evidencing the Purchasable Shares being purchased, duly endorsed (aor accompanied by duly executed stock powers) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; providedotherwise in good form for delivery, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result against payment of the purchase price by check of the Working Capital Facility Indebtednesspurchasers. The Working Capital Facility Collateral Agent hereby represents and warrants In the event that, as notwithstanding the foregoing, the Grantor shall have failed to obtain the release of any pledge or other encumbrance on any Purchasable Shares by the scheduled closing date, at the option of the date it becomes a party to this Agreementpurchasers the closing shall nevertheless occur on such scheduled closing date, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon with the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the cash purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses being reduced to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent all unpaid indebtedness for such purpose not less than three (3) Business Days prior to the date on which such amounts Purchasable Shares are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time)then pledged or encumbered.
(d) Such purchase shall be expressly made without representation or warranty of any kind by To assure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount enforceability of the Working Capital Facility Indebtedness being purchasedCompany’s rights under this Section 7, (ii) that each certificate or instrument representing Common Stock held by you shall bear a conspicuous legend in substantially the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedfollowing form: THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN OPTION TO REPURCHASE PROVIDED UNDER THE PROVISIONS OF THE COMPANY’S 2002 STOCK OPTION PLAN. A COPY OF SUCH OPTION PLAN IS AVAILABLE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral AgentCompany’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent rights under this Section 5.6, the Working Capital Facility Collateral Agent 7 shall not commence any foreclosure or other action to sell or otherwise realize terminate upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full consummation of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.a Qualifying Public Offering
Appears in 5 contracts
Sources: Executive Employment Agreement (S&c Holdco 3 Inc), Executive Employment Agreement (S&c Holdco 3 Inc), Executive Employment Agreement (S&c Holdco 3 Inc)
Purchase Option. (a) Upon Notwithstanding anything in this Agreement to the occurrence and during contrary, on or at any time after (i) the continuance commencement of an Event of Default Insolvency or an event of default under Liquidation Proceeding or (ii) the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf acceleration of the Interim Notes NoteholdersExisting Senior Obligations, and the Pari Passu Collateral Agent on behalf holders of the Pari Passu Lenders, after written demand by New Senior Obligations and each of their respective designated Affiliates (the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall “New Senior Obligation Purchasers”) will have the right, at their sole option and election (but will not be obligated), at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect Existing Senior Administrative Agent, to purchase a portion from the Existing Senior Secured Parties all (but not less than all) Existing Senior Obligations (including unfunded commitments then in effect) other than any Existing Senior Obligations constituting Excess Existing Senior Obligations and any loans provided by any of the Working Capital Facility Indebtedness from Existing Senior Secured Parties in connection with a DIP Financing that are outstanding on the Working Capital Facility Lendersdate of such purchase. Promptly following the receipt of such notice, ratably in proportion the Existing Senior Administrative Agent will deliver to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral New Senior Administrative Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt a statement of the information required amount of Existing Senior Obligations, (other than any Existing Senior Obligations constituting Excess Existing Senior Obligations) and DIP Financing provided by any of the Existing Senior Secured Parties, if any, then outstanding and the amount of the cash collateral requested by the Existing Senior Administrative Agent to be delivered pursuant to clauses Section 3.10(b)(ii) below. The right to purchase provided for in this Section 3.10 will expire unless, within 10 Business Days after the receipt by the New Senior Administrative Agent of such notice from the Existing Senior Administrative Agent, the New Senior Administrative Agent delivers to the Existing Senior Administrative Agent an irrevocable commitment of the New Senior Obligation Purchasers to purchase all (a) and (bbut not less than all) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion Existing Senior Obligations (including unfunded commitments) other than any Existing Senior Obligations constituting Excess Existing Senior Obligations and any loans provided by any of the Working Capital Facility Indebtedness; provided, further, that Existing Senior Secured Parties in connection with a DIP Financing and to otherwise complete such revocation is in writing duly signed by purchase on the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights terms set forth under this Section 5.63.10.
(b) On the date specified by the Interim Notes Collateral New Senior Administrative Agent or Pari Passu Collateral Agent (on behalf of the New Senior Obligation Purchasers) in its respective Exercise Notice such irrevocable commitment (which shall not be less than five (5) Business Days nor more than 20 Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Existing Senior Administrative Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)irrevocable commitment), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Existing Senior Secured Parties shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, New Senior Obligation Purchasers all (but not less than all) Existing Senior Obligations (including unfunded commitments) other than any Existing Senior Obligations constituting Excess Existing Senior Obligations and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless any loans provided by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events Existing Senior Secured Parties in connection with a DIP Financing that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon are outstanding on the date of such purchase sale, subject to any required approval of any Governmental Authority then in effect, if any, and only if on the date of such sale, the Interim Notes Collateral Existing Senior Administrative Agent and/or receives the Pari Passu Collateral Agent, as applicable, shall following:
(i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenderspayment, as the purchase price thereforefor all Existing Senior Obligations sold in such sale, of an amount equal to the full amount of all Existing Senior Obligations (other than outstanding letters of credit as referred to in clause (ii) below) other than any Existing Senior Obligations constituting Excess Existing Senior Obligations and loans provided by any of the respective Purchasable Portion of all the Working Capital Facility Indebtedness Existing Senior Secured Parties in connection with a DIP Financing then outstanding and unpaid (including principal, interest, fees and expensesfees, including reasonable attorneys’ fees and legal expenses expenses, but excluding any early termination fee contingent indemnification obligations for which no claim or prepayment penalty demand for payment has been made at or premium payable pursuant prior to such time); provided that in the case of Hedge Obligations that constitute Existing Senior Obligations, the New Senior Obligation Purchasers shall cause the applicable agreements governing such Hedge Obligations to be assigned and novated or, if such agreements have been terminated, such purchase price shall include an amount equal to the Working Capital Facility Agreement or sum of any other Working Capital Facility Document)unpaid amounts then due in respect of such Hedge Obligations, calculated using the market quotation method and after giving effect to any netting arrangements;
(ii) furnish a cash collateral to the Working Capital Facility Collateral Agent deposit in such amounts amount as the Working Capital Facility Collateral Existing Senior Administrative Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with payment of any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit constituting Existing Senior Obligations that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent may become due and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor payable after such sale (but not in any event in an amount greater than 110% one hundred five percent (105%) of the amount then reasonably estimated by the Existing Senior Administrative Agent to be the aggregate undrawn face outstanding amount of such letters of creditcredit at such time), which cash collateral shall be (A) held by the Existing Senior Administrative Agent as security solely to reimburse the issuers of such letters of credit that become due and payable after such sale and any fees and expenses incurred in connection with such letters of credit and (B) returned to the New Senior Administrative Agent (except as may otherwise be required by applicable law or any order of any court or other Governmental Authority) promptly after the expiration or termination from time to time of all payment contingencies affecting such letters of credit; and
(iii) agree to reimburse any agreements, documents or instruments which the Working Capital Facility Collateral Existing Senior Administrative Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as may reasonably request pursuant to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral New Senior Administrative Agent and Working Capital Facility Lenders the New Senior Obligation Purchasers in respect such sale expressly assume and adopt all of Qualified Indemnification Claims which the obligations of the Existing Senior Administrative Agent and the Existing Senior Secured Parties under the Existing Senior Credit Documents and in fact result connection with loans provided by any of the Existing Senior Secured Parties in connection with a DIP Financing on and after the date of the purchase and sale and the New Senior Administrative Agent (or any loss, cost, damage or expense other representative appointed by the holders of a majority in aggregate principal amount of the New Senior Obligations then outstanding) becomes a successor agent thereunder.
(c) Such purchase of the Existing Senior Obligations (including reasonable attorneys’ fees unfunded commitments) and legal expenses) any loans provided by any of the Existing Senior Secured Parties in connection with a DIP Financing shall be made on a pro rata basis among the New Senior Obligation Purchasers giving notice to the Working Capital Facility Collateral Existing Senior Administrative Agent and Working Capital Facility Lenders; provided, that (A) in no event will of their interest to exercise the Interim Notes Collateral Agent or Interim Notes Noteholders, purchase option hereunder according to each such New Senior Obligation Purchaser’s portion of the New Senior Obligations outstanding on the one hand, date of purchase or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, portion as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility ObligationsNew Senior Obligation Purchasers may otherwise agree among themselves. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Existing Senior Administrative Agent in New York, New York, as the Working Capital Facility Collateral Existing Senior Administrative Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral New Senior Administrative Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur occurs if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, New Senior Obligation Purchasers to the bank account designated by the Working Capital Facility Collateral Existing Senior Administrative Agent are received in such bank account prior to 1:00 p.m. (12:00 noon, New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, New Senior Obligation Purchasers to the bank account designated by the Working Capital Facility Collateral Existing Senior Administrative Agent are received in such bank account later than 1:00 p.m. (12:00 noon, New York City time).
(d) Such purchase sale shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Existing Senior Secured Parties as to the Working Capital Facility Indebtedness Existing Senior Obligations, the Collateral or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lendersany Existing Senior Secured Party, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Existing Senior Secured Parties shall represent and warrantwarrant severally as to the Existing Senior Obligations (including unfunded commitments) and any loans provided by any of the Existing Senior Secured Parties in connection with a DIP Financing then owing to it: (i) the amount that such applicable Existing Senior Secured Party owns such Existing Senior Obligations (including unfunded commitments) and any loans provided by any of the Working Capital Facility Indebtedness being purchased, Existing Senior Secured Parties in connection with a DIP Financing; and (ii) that such applicable Existing Senior Secured Party has the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens necessary corporate or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right other governing authority to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedsuch interests.
(e) The Working Capital Facility After such sale becomes effective, the outstanding letters of credit will remain enforceable against the issuers thereof and will remain secured by the Priority Lien upon the Collateral Agent agrees that it shall give in accordance with the Interim Notes Collateral Agent applicable provisions of the Existing Senior Credit Documents as in effect at the time of such sale (including this Agreement), and the Pari Passu Collateral Agent five (5) Business Days prior written notice issuers of its intention to commence the exercise letters of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send credit will remain entitled to the Working Capital Facility Collateral Agent the irrevocable notice benefit of the Interim Notes Priority Lien upon the Collateral Agent’s and sharing rights in the Pari Passu Collateral Agent’s intention proceeds thereof in accordance with the provisions of the Existing Senior Credit Documents as in effect at the time of such sale (including this Agreement), as fully as if the sale of the Existing Lien Obligations had not been made, but, except with respect to exercise the purchase option given cash collateral held by the Working Capital Facility Collateral Agent issuer(s) of such letters of credit, only the Person or successor agent to whom the Priority Lien is transferred in such sale will have the right to foreclose upon or otherwise enforce the Priority Lien and only the New Senior Obligation Purchasers in the sale will have the right to direct such Person or successor as to matters relating to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full enforcement of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralPriority Lien.
Appears in 3 contracts
Sources: Credit Agreement, Credit Agreement (California Resources Corp), Credit Agreement (California Resources Corp)
Purchase Option. (a) Upon the occurrence and during the continuance continuation of an Event a Triggering Event, then, in any such case, any one or more of Default Second Lien Holders (acting in their individual capacity or an event of default under the Working Capital Facility Documents that is not cured through one or waived within thirty (30more affiliates) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time right, but not the obligation (each Second Lien Holder having a ratable right to make the purchase, with each Second ▇▇▇▇ ▇▇▇▇▇▇’▇ right to purchase being automatically proportionately increased by the amount not purchased by another Second Lien Holder), upon five (5) 5 Business Days’ prior Days advance written notice to the Working Capital Facility Collateral Agent to elect to purchase from such Second Lien Holders (a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Purchase Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral to First Lien Agent, as applicablefor the benefit of First Lien Claimholders, to acquire from First Lien Claimholders all (but not less than all) of the Working Capital Facility Collateral Agent right, title, and interest of First Lien Claimholders in and to the First Lien Priority Obligations and the First Lien Debt Documents. The Purchase Notice, if given, shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by in the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Purchase Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days 5 Business Days after the receipt by the Working Capital Facility Collateral First Lien Agent of the Exercise Purchase Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders First Lien Claimholders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, purchasing Second Lien Holders and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent purchasing Second Lien Holders shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility LendersFirst Lien Claimholders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleFirst Lien Priority Obligations.
(c) Upon On the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Second Lien Holders shall (i) pay to the Working Capital Facility Collateral First Lien Agent, for the benefit of Working Capital Facility LendersFirst Lien Claimholders, as the purchase price thereforetherefor, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness First Lien Priority Obligations (other than First Lien Obligations cash collateralized in accordance with clause (ii) below) then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document)unpaid, (ii) furnish cash collateral to the Working Capital Facility Collateral First Lien Agent in such amounts as the Working Capital Facility Collateral First Lien Agent determines is reasonably necessary to secure the Working Capital Facility Collateral First Lien Agent and Working Capital Facility Lenders First Lien Claimholders in connection with (A) any issued and outstanding letters Letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor Credit (but not in any event in an amount greater than 110that 105% of the aggregate undrawn face amount of such letters Letters of creditCredit) and (B) Secured Hedge Liabilities and Secured Banking Services Obligations (but not in any event in an amount greater than that 105% of the aggregate amount of Net Secured Hedge Liabilities and Secured Banking Services Obligations), and (iii) agree to reimburse the Working Capital Facility Collateral First Lien Agent and Working Capital Facility Lenders First Lien Claimholders for any checks or other payments provisionally credited all expenses to the Working Capital Facility Indebtednessextent earned or due and payable in accordance with the First Lien Debt Documents (including the reimbursement of extraordinary expenses, and/or as financial examination expenses, and appraisal fees). Anything contained in this paragraph to the contrary notwithstanding, in the event that (X) the purchasing Second Lien Holders receive all or a portion of any prepayment premium, make-whole obligation or early termination fee payable pursuant to the First Lien Debt Documents in cash, (Y) all First Lien Obligations purchased by the Second Lien Holders and all of the Second Lien Obligations (other than the Excess Second Lien Obligations), including principal, interest and fees thereon and costs and expense of collection thereof (including reasonable attorneys fees and legal expenses), are repaid in full in cash, and (Z) the First Lien Debt Agreement is terminated, in each case, within 90 days following the date on which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and Second Lien Holders pay the purchase price described in clauses (ivi)-(iii) agree of this paragraph, then, within 3 Business Days after receipt by the purchasing Second Lien Holders of such amounts, the purchasing Second Lien Holders shall pay a supplemental purchase price to reimburse the Working Capital Facility Collateral First Lien Agent and Working Capital Facility the First Lien Lenders in respect of Qualified Indemnification Claims which their purchase under this Section 5.6 in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) an amount equal to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess portion of the cash proceeds of Shared Collateral prepayment premium, make-whole obligation or early termination fee received by the Interim Notes Collateral purchasing Second Lien Holders to which the First Lien Agent or and the Pari Passu Collateral Agent, as applicable, net of (1) First Lien Lenders would have been entitled to receive had the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders purchase under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligationsparagraph not occurred. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral First Lien Agent in New York, New York, as the Working Capital Facility Collateral First Lien Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Second Lien Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Second Lien Holders to the bank account designated by the Working Capital Facility Collateral First Lien Agent are received in such bank account prior to 1:00 p.m. (2:00 p.m., New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, purchasing Second Lien Holders to the bank account designated by the Working Capital Facility Collateral First Lien Agent are received in such bank account later than 1:00 p.m. (2:00 p.m., New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral First Lien Agent and Working Capital Facility Lenders First Lien Claimholders as to the Working Capital Facility Indebtedness First Lien Obligations so purchased or otherwise and without recourse to the Working Capital Facility Collateral First Lien Agent or Working Capital Facility Lendersany First Lien Claimholder, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders each First Lien Claimholder shall represent and warrant: (i) that the amount quoted by such First Lien Claimholder as its portion of the Working Capital Facility Indebtedness being purchasedpurchase price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (ii) that it owns, or has the Working Capital Facility Collateral Agent right to transfer to purchasing Second Lien Holders, the rights being transferred, and Working Capital Facility Lenders own the Working Capital Facility Indebtedness (iii) such transfer will be free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedLiens.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent any one or more of Second Lien Claimholders exercises and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise consummates the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under set forth in this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral (i) First Lien Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before right, but not the Outside Closing Date. Nothing contained in this Section 5.6(eobligation, to immediately resign under the First Lien Debt Agreement, and (ii) purchasing Second Lien Holders shall restrict or prohibit have the Working Capital Facility Collateral right, but not the obligation, to require First Lien Agent from taking action to immediately resign under the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralFirst Lien Debt Agreement.
Appears in 3 contracts
Sources: Intercreditor Agreement, Intercreditor Agreement (Hutchinson Technology Inc), Intercreditor Agreement (Hutchinson Technology Inc)
Purchase Option. (a) Upon the occurrence and during the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Notes Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreementhereof, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 3 contracts
Sources: Indenture (FiberTower CORP), Indenture (FiberTower CORP), Supplemental Indenture (FiberTower CORP)
Purchase Option. (a) Upon the occurrence and during the continuance continuation of an Event of Default a Triggering Event, then, in any such case, any one or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf more of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee Term Loan Claimholders (acting in their individual capacity or the Interim Notes Collateral Agent, on the through one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, more affiliates) shall have the option at any time right, but not the obligation (each Term Loan Claimholder having a ratable right to make the purchase, with each Term Loan Claimholder's right to purchase being automatically proportionately increased by the amount not purchased by another Term Loan Claimholder), upon five (5) 5 Business Days’ Days prior written notice from (or on behalf of) such Term Loan Claimholders (a "Purchase Notice") to ABL Agent to acquire from the ABL Claimholders all (but not less than all) of the right, title, and interest of the ABL Claimholders in and to the Working Capital Facility Collateral Agent to elect to purchase a portion of ABL Priority Debt and the Working Capital Facility Indebtedness from the Working Capital Facility LendersABL Documents. The Purchase Notice, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each caseif given, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Term Loan Agent in its respective Exercise the Purchase Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days 5 Business Days after the receipt by the Working Capital Facility Collateral ABL Agent of the Exercise Purchase Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders ABL Claimholders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, purchasing Term Loan Claimholders and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent purchasing Term Loan Claimholders shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility LendersABL Claimholders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleABL Priority Debt.
(c) Upon On the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall purchasing Term Loan Claimholders shall
(i) pay to the Working Capital Facility Collateral ABL Agent, for the benefit of Working Capital Facility Lendersthe ABL Claimholders, as the purchase price thereforetherefor, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness ABL Priority Debt, other than indemnification obligations for which no claim or demand for payment has been made at such time, and other than ABL Priority Debt cash collateralized in accordance with clause (c)(ii) below) then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), unpaid,
(ii) furnish cash collateral to the Working Capital Facility Collateral ABL Agent in such amounts as the Working Capital Facility Collateral ABL Agent determines is reasonably necessary to secure the Working Capital Facility Collateral ABL Agent and Working Capital Facility Lenders the ABL Claimholders in connection with respect of (A) any issued and outstanding letters Letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor Credit (but not in any event in an amount greater than 110% the amount required under the ABL Credit Agreement as in effect on the date hereof) of the aggregate undrawn face amount of such letters Letters of credit), Credit) (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited such cash collateral shall be applied to the Working Capital Facility Indebtednessreimbursement of any drawing under a Letter of Credit as and when such drawing is paid and, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect if a Letter of Qualified Indemnification Claims which in fact result in any lossCredit expires undrawn, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received collateral held by the Interim Notes Collateral ABL Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to Letter of Credit shall be turned over remitted to the Working Capital Facility Collateral Term Loan Agent or for the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, benefit of the purchasing Term Loan Claimholders) and (B) Bank Product Obligations (such cash collateral shall be applied to the reimbursement of the Bank Product Obligations as and when such obligations become due and payable and, at such time as all of the Bank Product Obligations are paid in no event shall full, the Interim Notes Collateral remaining cash collateral held by ABL Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than Bank Product Obligations shall be remitted to the Qualified Indemnification ClaimsTerm Loan Agent for the benefit of the purchasing Term Loan Claimholders), and (C) any asserted or threatened (in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losseswriting) claims, demands, actions, suits, proceedings, investigations, liabilities, fines, costs, penalties, or damages or that are the subject of the indemnification provisions of the ABL Credit Agreement (such cash collateral shall be applied to the reimbursement of such obligations as and when they become due and payable and, at such time as all of such obligations are paid in full, the remaining cash collateral held by ABL Agent in respect of indemnification obligations shall be remitted to the Term Loan Agent for the benefit of the purchasing Term Loan Claimholders), in each case in respect of ABL Priority Debt, and
(iii) pay to ABL Agent and the other ABL Claimholders the amount of all expenses to the extent caused by earned or resulting from due and payable in accordance with the gross negligence or willful misconduct ABL Documents (including the reimbursement of the Working Capital Facility Collateral Agentattorneys' fees, as determined by a final non-appealable order of a court of competent jurisdictionfinancial examination expenses, and appraisal fees) and incurred through the date of such purchase.
(Dd) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in of federal funds to such bank account of the Working Capital Facility Collateral ABL Agent in New York, New York, as the Working Capital Facility Collateral ABL Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Term Loan Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Term Loan Claimholders to the bank account designated by the Working Capital Facility Collateral ABL Agent are received in such bank account prior to 1:00 p.m. (2:00 p.m., New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, purchasing Term Loan Claimholders to the bank account designated by the Working Capital Facility Collateral ABL Agent are received in such bank account later than 1:00 p.m. (2:00 p.m., New York City time).
(de) Anything contained in this paragraph to the contrary notwithstanding, in the event that (i) the purchasing Term Loan Claimholders receive all or a portion of any prepayment premium, make-whole obligation, or early termination fee payable pursuant to any the ABL Documents in cash, (ii) all ABL Debt purchased by such purchasing Term Loan Claimholders including principal, interest and fees thereon and costs and expenses of collection thereof (including reasonable attorneys' fees and legal expenses), is repaid in full in cash, and (iii) the ABL Credit Agreement is terminated, in each case, within 180 days following the date on which the purchasing Term Loan Claimholders pay the purchase price described in clauses (c)(i)-(iii) of this Section 5.6, then, within 3 Business Days after receipt by such Term Loan Claimholders of such amounts, the purchasing Term Loan Claimholders shall pay a supplemental purchase price to ABL Agent, for the benefit of the ABL Claimholders, in respect of their purchase under this Section 5.6 in an amount equal to the portion of the prepayment premium, make-whole obligation or early termination fee received by the purchasing Term Loan Claimholders to which the ABL Claimholders would have been entitled to receive had the purchase under this Section 5.6 not occurred.
(f) Such purchase shall be effected by the execution and delivery of a customary form of assignment and acceptance agreement and shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral ABL Agent and Working Capital Facility Lenders the other ABL Claimholders as to the Working Capital Facility Indebtedness ABL Debt so purchased, or otherwise otherwise, and without recourse to the Working Capital Facility Collateral ABL Agent or Working Capital Facility Lendersany other ABL Claimholder, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders each ABL Claimholder shall represent and warrant: (i) that the amount quoted by such ABL Claimholder as its portion of the Working Capital Facility Indebtedness being purchasedpurchase price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (ii) that it owns, or has the Working Capital Facility Collateral Agent right to transfer to the purchasing Term Loan Claimholders, the rights being transferred, and Working Capital Facility Lenders own the Working Capital Facility Indebtedness (iii) such transfer will be free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedLiens.
(eg) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice any one or more of the Interim Notes Collateral Agent’s Term Loan Claimholders exercises and the Pari Passu Collateral Agent’s intention to exercise consummates the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under set forth in this Section 5.6, the Working Capital Facility Collateral (i) ABL Agent shall have the right, but not commence the obligation, to immediately resign under the ABL Credit Agreement, and (ii) the purchasing Term Loan Claimholders shall have the right, but not the obligation, to require ABL Agent to immediately resign under the ABL Credit Agreement.
(h) In the event that any foreclosure one or more of the Term Loan Claimholders exercises and consummates the purchase option set forth in this Section 5.6, (i) the ABL Claimholders shall retain their indemnification rights under the ABL Credit Agreement for actions or other action matters arising on or prior to sell the date of such purchase, and (ii) and in the event that, at the time of such purchase, there exists Excess ABL Debt, the consummation of such purchase option shall not include (nor shall the purchase price be calculated with respect to) such Excess ABL Debt (clauses (i) and (ii), the "Retained Interest").
(i) In the event that a Retained Interest exists, each ABL Claimholder shall, at the request of the purchasing Term Loan Claimholders, execute an amendment to the ABL Credit Agreement acknowledging that such Retained Interest consisting of Excess ABL Debt is a last-out tranche, payable after Payment in Full of all ABL Priority Debt and payment in full in cash of all of the Term Loan Priority Debt. Interest with respect to such Retained Interest consisting of Excess ABL Debt shall continue to accrue and be payable in accordance with the terms of the ABL Documents, the Retained Interest shall continue to be secured by the ABL Collateral, and the Retained Interest shall be paid (or otherwise realize upon cash collateralized, as applicable) in accordance with the Shared Collateral or immediately desist from taking any further actionterms of the ABL Credit Agreement and this Agreement. Each ABL Claimholder shall continue to have all rights and remedies of a lender under the ABL Credit Agreement and the other ABL Documents; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein no ABL Claimholder shall have closed by any right to vote on or otherwise consent to any amendment, waiver, departure from, or other modification of any provision of any ABL Document except that the Outside Closing Date and the Working Capital Facility Collateral consent of ABL Agent shall have received payment in full be required for (i) those matters that require the agreement of all lenders under Section 14.1 of the Working Capital Facility Indebtedness ABL Credit Agreement as provided for herein in effect on or before the Outside Closing Date. Nothing contained date hereof and (ii) matters in contravention of the provisions and priorities set forth in this Agreement.
(j) Each ABL Grantor irrevocably consents to any assignment effected to one or more Term Loan Claimholder pursuant to this Section 5.6(e) 5.6 for purposes of all ABL Documents and hereby agrees that no further consent from such ABL Grantor shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateralrequired.
Appears in 2 contracts
Sources: Intercreditor Agreement (Kronos Worldwide Inc), Credit Agreement (Kronos Worldwide Inc)
Purchase Option. (a) Upon the occurrence and during the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf In consideration of the Interim Notes Noteholderstransactions contemplated hereby, and if after the Pari Passu Collateral Agent on behalf date hereof Seller or any of the Pari Passu Lendersits Affiliates are required to, after written demand by the Trustee or the Interim Notes Collateral Agentotherwise determine to, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, divest individual Medicare Advantage plan Contracts in addition to the Company for Conveyed Medicare Advantage Contracts (the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of such Contracts covering the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion applicable geographies to the outstanding Obligations of each outstanding Series of Secured Debt (in each casebe divested, the “Purchasable Portion”). Such notice (an “Exercise NoticeAdditional Contracts”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance connection with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur Humana Acquisition and prior to the closing of the of Humana Acquisition, Purchaser shall have the sale of exclusive irrevocable option (the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor“Option”) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit)purchase, (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances except Permitted Liens, the Additional Contracts on terms substantially identical to those set forth in this Agreement at a purchase price calculated on a per-Enrollee basis of the amount per Enrollee set forth on Section 5.20(a) of the Seller Disclosure Schedules, to be adjusted proportionally based on deviation in premium revenue and (iii) medical benefit ratio for such Additional Contracts as compared to the Working Capital Facility Collateral Agent Conveyed Medicare Advantage Contracts and Working Capital Facility Lenders such other metrics as the parties shall mutually agree upon. Seller shall provide prompt notice in writing to Purchaser of its intention to divest such Additional Contracts and Purchaser shall have the right to assign irrevocably exercise the Working Capital Facility Indebtedness Option with respect to all (but not less than all) of the Additional Contracts within 15 days of receipt of such notice by providing irrevocable written notice of such election to Seller; provided, however, that if Purchaser shall notify Seller in writing within such 15-day period that it is diligently and in good faith pursuing financing sources to enable it to exercise the assignment is duly authorizedOption, then Purchaser shall have up to a total (including the initial 15 days) of 30 days to provide such notice of election to Seller (such 15-day or 30-day period, the “Option Exercise Period”). Purchaser acknowledges and agrees that it will exercise the Option and acquire the Additional Contracts if, in Purchaser’s good faith and reasonable judgment, (i) the acquisition of the Additional Contracts pursuant to this Section 5.20, and (ii) the acquisition of the Purchased Assets pursuant to this Agreement, considered together and as a whole, are commercially reasonable. If Purchaser exercises the Option during the Option Exercise Period (including any extension of the Option Exercise Period pursuant to Section 5.20(b) below), Purchaser and Seller will enter into an amendment to this Agreement or an agreement on substantially similar terms as this Agreement promptly after such exercise providing for Purchaser’s purchase of the Additional Contracts. If Purchaser does not exercise the Option within the Option Exercise Period (including any extension of the Option Exercise Period pursuant to Section 5.20(b) below), Seller shall be free to sell, divest or otherwise transfer the Additional Contracts to one or more Persons without restriction thereafter and this Option shall thereafter terminate. Notwithstanding the foregoing, Purchaser agrees that all of Purchaser’s rights under this Section 5.20 (including, for the avoidance of doubt, the grant of the Option to Purchaser) shall terminate on the earlier to occur of (1) the closing of the Humana Acquisition and (2) the termination of this Agreement pursuant to Article 8.
(eb) The Working Capital Facility Collateral Agent agrees Notwithstanding anything to the contrary in Section 5.20(a), if Seller reasonably and in good faith determines that it shall give Purchaser’s purchase of the Interim Notes Collateral Agent Additional Contracts pursuant to the Option is not reasonably likely to be consummated in a timely manner in accordance with the terms set forth in this Agreement, including Section 5.20, taking into account, among other things, any governmental or other Consent requirements for (or potential governmental challenges to) such purchase and the Pari Passu Collateral Agent five likelihood that such Consents will be obtained (5or such challenges overcome) Business Days prior written in a timely manner, Seller shall promptly notify Purchaser in writing of such determination, which notice shall set forth in reasonable detail Seller’s concerns underlying such determination, and Purchaser shall have 10 days after receipt of its intention such notice to commence reasonably respond to the exercise of any enforcement right or remedy against the Shared Collateralissues raised by Seller. In the event that during If after such five Business Day 10-day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send Purchaser is unable to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agentreasonably address Seller’s and the Pari Passu Collateral Agentconcerns as determined in Seller’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its reasonable good faith judgment, deems then Seller shall not be required to offer the Additional Contracts to Purchaser pursuant to the Option, and Purchaser shall not have the right to purchase the Additional Contracts pursuant to the Option. Alternatively, if during such action 10-day period, Purchaser is able to reasonably address Seller’s concerns as determined in Seller’s reasonable good faith judgment, then the Option Exercise Period shall be necessary extended for such additional period of time (up to preserve or protect the Shared Collateral10 days) for Purchaser and Seller to resolve any issues raised by Seller under this Section 5.20(b).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Molina Healthcare Inc), Asset Purchase Agreement (Molina Healthcare Inc)
Purchase Option. (a) Upon On and after the earliest of (i) the occurrence and during the continuance of an a Revolving Event of Default or an event of default under and the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf acceleration of the Interim Notes NoteholdersRevolving Loan Debt or (ii)
(a) the amount (including details of amounts of principal, interest, fees and the Pari Passu Collateral Agent on behalf expenses) of the Pari Passu LendersRevolving Loan Debt being purchased, after written demand by (b) that Revolving Lenders own the Trustee Revolving Loan Debt free and clear of any Liens or encumbrances, (c) the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Revolving Loan Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall Parties have the right within ten to assign the Revolving Loan Debt, and (10d) days following receipt the assignment is duly authorized, executed and delivered. Any cash collateral furnished for Letters of the information Credit outstanding which is not required to be delivered pursuant utilized to clauses (a) reimburse the Revolving Loan Secured Parties for any drawings thereunder and (b) fees and expenses associated therewith shall be returned to the Term Loan Agent upon the expiration or cancellation of each such Letter of Credit or after each such Letter of Credit is fully drawn. The obligations of the definition of “Qualified Indemnification Claim” Revolving Loan Secured Parties to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights sell their respective Revolving Loan Debt under this Section 5.62.14 are several and not joint, and if any Revolving Loan Secured Party breaches its obligations to sell its Revolving Loan Debt, the Designated Term Purchaser(s) may (but shall not be obligated to) purchase the Revolving Loan Debt of the other Revolving Loan Secured Parties; it being acknowledged that nothing in this Section 2.14 shall require the Designated Term Purchaser(s) to purchase less than all of the Revolving Loan Debt.
(b) On and after the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later earliest of (i) thirty the occurrence and during the continuance of a Term Event of Default and the acceleration of the Term Loan Debt or (30ii) the receipt of a Term Loan Enforcement Notice, or (iii) ninety (90) days after the receipt by the Working Capital Facility Collateral Term Loan Agent of the Exercise a Revolving Loan Enforcement Notice, and (iithe Person(s) ten (10) days after receipt designated by the Interim Notes Collateral Revolving Credit Agent or Pari Passu Collateral (the "Designated Revolving Purchaser(s)") shall have the option, by written notice from the Revolving Credit Agent to the Term Loan Agent, as applicable, to purchase all of the information required to be delivered pursuant to clauses Term Loan Debt (a) and (b) of including the definition of “Qualified Indemnification Claim” (Term Loan Secured Parties' collateral interest in the later of Collateral). On the date specified by the Revolving Credit Agent in such datesnotice, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Term Loan Secured Parties shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (ADesignated Revolving Purchaser(s) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtednesssuch Term Loan Debt. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Designated Revolving Purchaser(s) shall (i) pay to the Working Capital Facility Collateral Term Loan Agent, for its account and the benefit account of Working Capital Facility Lendersthe Term Loan Secured Parties, as the purchase price therefore, therefor the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness such Term Loan Debt then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ ' fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise Term Loan Secured Parties and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility LendersTerm Loan Secured Parties, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Term Loan Secured Parties shall represent and warrant: (ia) the amount (including details of amounts of principal, interest, fees, expenses, and other charges) of the Working Capital Facility Indebtedness Term Loan Debt being purchased, (iib) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Term Loan Secured Parties own the Working Capital Facility Indebtedness Term Loan Debt free and clear of any Liens liens or encumbrances and encumbrances, (iiic) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Term Loan Secured Parties have the right to assign the Working Capital Facility Indebtedness Term Loan Debt and (d) the assignment is duly authorized.
(e) , executed and delivered. The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice obligations of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention Term Loan Secured Parties to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent sell their respective Term Loan Debt under this Section 5.62.14 are several and not joint, and if any Term Loan Secured Party breaches its obligations to sell its Term Loan Debt, the Working Capital Facility Collateral Agent Designated Revolving Purchaser(s) may (but shall not commence any foreclosure or other action to sell or otherwise realize upon be obligated to) purchase the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full Term Loan Debt of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained other Term Loan Secured Parties; it being acknowledged that nothing in this Section 5.6(e2.14 shall require the Designated Revolving Purchaser(s) shall restrict or prohibit to purchase less than all of the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralTerm Loan Debt.
Appears in 2 contracts
Sources: Intercreditor Agreement (Eddie Bauer Holdings, Inc.), Intercreditor Agreement (Eddie Bauer Holdings, Inc.)
Purchase Option. Upon Retailer’s right to terminate this Agreement for any reason under Section 17(b), Retailer will have the right (but not the obligation), exercisable as provided below, to purchase, or to arrange for the purchase of, not less than all of the Accounts and related Indebtedness (other than Accounts that have been written-off by Bank) for a purchase price payable in immediately available funds in an amount equal to [**Confidential portion has been omitted pursuant to a request for confidential treatment and has been filed separately with the Commission]. Anything in this Section 20 to the contrary notwithstanding, Bank shall have no obligation to sell, and Retailer shall have no option to purchase (or arrange for the purchase of) the Accounts and related Indebtedness under this Section unless aggregated outstanding indebtedness (as described above) as of the date of Retailer’s notice to Bank under Section 20(b) below exceeds [**Confidential portion has been omitted pursuant to a request for confidential treatment and has been filed separately with the Commission] ** Confidential portions have been omitted pursuant to a request for confidential treatment by Haverty Furniture Companies, Inc. pursuant to Rule 24B-2 under the Securities Exchange Act of 1934.
(a) Upon the occurrence and during the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a [**Confidential portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered has been omitted pursuant to clauses (a) a request for confidential treatment and (b) of has been fil▇▇ ▇▇▇▇rately with the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.Commission]
(b) On Retailer must exercise its option to purchase the date specified Accounts under Section 20(a) by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in giving notice of such election with its respective Exercise Notice notice of termination. Retailer must thereafter complete such purchase within one hundred twenty (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30120) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later effective date of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portiontermination; provided, provided that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents price is mutually agreeable to both Retailer and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleBank.
(c) Upon If Retailer exercises its right to purchase, or arrange for the date of such purchase and saleof, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall Accounts and Indebtedness under this Section 20:
(i) pay Retailer and Bank agree to work in good faith to prepare the Working Capital Facility Collateral Agent, necessary purchase documents on terms and conditions that are reasonable and customary for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), industry.
(ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters Retailer will bear all expenses of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents conversion of the Working Capital Facility Collateral Agent Accounts and Working Capital Facility Lenders with the Company Indebtedness to Retailer or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time)its designee.
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 2 contracts
Sources: Retailer Program Agreement (Haverty Furniture Companies Inc), Retailer Program Agreement (Haverty Furniture Companies Inc)
Purchase Option. (a) Upon the occurrence The Company hereby agrees to issue and during the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, sell to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu ObligationsUnderwriters (and/or their designees), as applicableseverally and not jointly, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations portion of the total Firm Units being purchased by each outstanding Series such Underwriter, on the Effective Date an option ("Underwriters' Purchase Option") for the purchase of Secured Debt an aggregate of 105,000 units ("Underwriters' Units") for an aggregate purchase price of $100. Each of the Underwriters' Units is identical to the Firm Units except that the Warrants included in each casethe Underwriters' Units ("Underwriters' Warrants") have an exercise price of $6.00 (1331/3% of the exercise price of the Warrants included in the Units sold to the public). The Underwriters' Purchase Option shall be exercisable, in whole or in part, commencing on the later of the consummation of a Business Combination and one year from the Effective Date and expiring on the five-year anniversary of the Effective Date at an initial exercise price per Underwriters' Unit of $7.20, which is equal to 120% of the initial public offering price of a Unit. The Underwriters' Purchase Option, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from Underwriters' Units, the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to Underwriters' Warrants and the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt shares of Common Stock issuable upon exercise of the information required Underwriters' Warrants are hereinafter referred to be delivered collectively as the "Underwriters' Securities." The Public Securities and the Underwriters' Securities are hereinafter referred to collectively as the "Securities." Except pursuant to clauses (a) and (bone or more of the exceptions set forth in Rule 2710(g)(2) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion Conduct Rules of the Working Capital Facility Indebtedness; providedNational Association of Securities Dealers, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which Underwriters' Purchase Option shall not be less than five (5) Business Dayssold, nor more than transferred, assigned, pledged or hypothecated, or be the later subject of (i) thirty (30) days after any hedging, short sale, derivative, put or call transaction that would result in the receipt effective economic disposition of the Underwriters' Purchase Option by the Working Capital Facility Collateral Agent holder(s) thereof, for a period of one year immediately following the date the Registration Statement (as hereinafter defined) is declared effective by the Commission (as hereinafter defined). Notwithstanding the foregoing, the Underwriters' Purchase Option shall be transferable to affiliates of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleUnderwriters.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 2 contracts
Sources: Underwriting Agreement (Restaurant Acquisition Partners, Inc.), Underwriting Agreement (Restaurant Acquisition Partners, Inc.)
Purchase Option. (a) Upon the occurrence and during the continuance Senior Creditor shall give Junior Agent a copy of an Event any written notice of Default acceleration of any Senior Debt given by Senior Creditor to one or an event of default under the Working Capital Facility Documents that is not cured more Debtors, concurrently with, or waived within thirty (30) daysas soon as practicable after, the Interim Notes Collateral giving of such notice to such Debtors. For a period of 10 calendar days following receipt of such notice by Junior Agent on behalf of (the Interim Notes Noteholders“Option Period”), and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, Junior Creditors shall have the option (the “Purchase Option”) to purchase from Senior Creditor (i) all, but not less than all, of the Senior Debt owed to Senior Creditor at the time of purchase (excluding the Retained Debt, as defined below) and (ii) all of Senior Creditor’s right, title and interest in and to, and all of Senior Creditor’s obligations under, the Senior Loan Documents (excluding the Retained Interests, as defined below, and excluding all rights and remedies of Senior Creditor under and with respect to any warrant, registration rights agreement, capital stock of any Debtor and other similar equity investments) (all such property referred to in clauses (i) and (ii) being collectively called the “Assigned Interests”). At any time during the Option Period, Junior Creditors may exercise the Purchase Option by causing Junior Agent to deliver to Senior Creditor a written notice of intent to exercise the Purchase Option (the “Purchase Option Notice”), in which notice Junior Agent shall specify the date of closing (which shall be a business day within the Option Period). On the closing date specified in the Purchase Option Notice, Senior Creditor shall, pursuant to an assignment agreement in form and substance satisfactory to Senior Creditor and Junior Creditors, assign all of its right, title and interest in and to the Assigned Interests to Junior Creditors, without representation, recourse or warranty (except as expressly set forth below), upon Senior Creditor’s receipt of payment, in cash (and in immediately available federal funds by wire transfer to a bank account designated by Senior Creditor), of the purchase price (the “Option Purchase Price”), which shall be an amount equal to 100% of the Senior Debt owed on the date of payment to Senior Creditor (it being understood and agreed to by all parties that any purchase and sale consummated pursuant to this Section 10 shall be deemed to be a prepayment of all of the Senior Debt for all purposes of the Senior Loan Documents), including, without limitation, (w) all unpaid interest, fees and any other charges, without regard to whether or not such amounts are allowed or are recoverable pursuant to Section 506 of the Bankruptcy Code or otherwise, (x) any prepayment fee or early termination fee set forth in the Senior Loan Documents, and (y) any amounts that are due and payable to Senior Creditor in respect of claims for which Senior Creditor is entitled to indemnification under the Senior Loan Documents, but excluding the Retained Debt. Without duplication of any amounts to be paid as part of the Option Purchase Price, Junior Creditor shall furnish to Senior Creditor on the date of closing on the Purchase Option cash collateral as security to Senior Creditor for the payment of all Asserted Known Indemnification Claims, as defined below, such cash collateral to be an amount equal to 100% of such claims. The election to exercise the Purchase Option pursuant to the Purchase Option Notice shall be irrevocable and shall fully obligate and commit Junior Creditors to acquire the Assigned Interests as herein provided. The amount of and payment of the Option Purchase Price or any other sum required to be paid by Junior Creditors to Senior Creditor pursuant to this Section 10 shall not be subject to any defense, reduction, recoupment or offset, for any reason, including, without limitation, any breach or alleged breach by Senior Creditor at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral of any provision of this Agreement. The failure of Junior Agent to elect to purchase a portion of deliver the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, Purchase Option Notice so that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and it is received by Senior Creditor prior to expiration of the Working Capital Facility Collateral Agent Option Period or to consummate the purchase pursuant to the Purchase Option as provided herein prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder Option Period shall have any rights under this Section 5.6.
(b) On result in the date specified forfeiture of the Purchase Option, unless otherwise agreed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent Senior Creditor in its respective Exercise Notice (which sole discretion. As used herein, the term “Retained Debt” shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, mean any and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information all amounts required to be delivered paid by any Debtor to Senior Creditor pursuant to clauses (a) and (b) any indemnity provisions contained in any of the definition of “Qualified Indemnification Claim” (the later of such datesSenior Loan Documents, the “Outside Closing Date”)), claim for which arises or becomes due and payable after the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell consummation of the purchase by Junior Creditor pursuant to the Interim Notes Collateral Agent and/or Purchase Option; the Pari Passu Collateral Agentterm “Retained Interests” shall mean the rights and interest retained by Senior Creditor under all of the Senior Loan Documents, notwithstanding the sale and the Interim Notes Collateral Agent and/or assignment of the Pari Passu Collateral Agent shall purchase from Assigned Interests, in respect of the Working Capital Facility Collateral Agent Retained Debt and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in respect of indemnification obligations of Debtors in accordance with the terms Senior Loan Documents (all of which shall survive the sale and assignment of the Working Capital Facility Documents as Assigned Interests and continue to actions benefit Senior Creditor); and the term “Asserted Known Indemnification Claim” means any matters or events circumstances for which notice or demand has been made or asserted against Senior Creditor in writing that occurred at the time of determination could reasonably be expected to result in direct or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agentactual damages and expenses (including, but shall not retain any rights to the security thereforwithout limitation, reasonable and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable documented attorneys’ fees and legal expenses disbursements but excluding special, indirect, consequential or punitive damages to Senior Creditor) to Senior Creditor and which are subject to indemnification by any early termination fee or prepayment penalty or premium payable Debtor pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral terms of the Senior Loan Documents. Any reference to the Working Capital Facility Collateral Agent amount of any Asserted Known Indemnification Claim shall mean that amount as reasonably determined by Senior Creditor in such amounts as light of the Working Capital Facility Collateral Agent determines is reasonably necessary to secure facts and circumstances of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in underlying claim. In connection with any issued such sale or assignment, each Debtor agrees to execute and outstanding letters deliver to Senior Creditor all such agreements, instruments or documents as Senior Creditor may reasonably request to evidence the survival of credit provided such rights, interest and obligations. The grant of the Purchase Option shall not operate to restrict Senior Creditor from assigning or transferring to any Person any or all of its loan commitments under the Senior Loan Documents or any Senior Debt owing to it or any of its rights or other interests under the Senior Loan Documents, so long as such Person agrees to be bound by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters terms of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral10.
Appears in 2 contracts
Sources: Debt Subordination and Intercreditor Agreement (Capital Growth Systems Inc /Fl/), Debt Subordination and Intercreditor Agreement (Capital Growth Systems Inc /Fl/)
Purchase Option. (a) Upon the occurrence The Company hereby agrees to issue and during the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, sell to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu ObligationsUnderwriters (and/or their designees), as applicableseverally and not jointly, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations portion of the total Firm Units being purchased by each outstanding Series such Underwriter, on the Effective Date an option ("Underwriters' Purchase Option") for the purchase of Secured Debt an aggregate of 425,000 units ("Underwriters' Units") for an aggregate purchase price of $100. Each of the Underwriters' Units is identical to the Firm Units except that the Warrants included in each casethe Underwriters' Units ("Underwriters' Warrants") have an exercise price of $6.00 (120% of the exercise price of the Warrants included in the Units sold to the public). The Underwriters' Purchase Option shall be exercisable, in whole or in part, commencing on the later of the consummation of a Business Combination and one year from the Effective Date and expiring on the five-year anniversary of the Effective Date at an initial exercise price per Underwriters' Unit of $7.20, which is equal to 120% of the initial public offering price of a Unit. The Underwriters' Purchase Option, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from Underwriters' Units, the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to Underwriters' Warrants and the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt shares of Common Stock issuable upon exercise of the information required Underwriters' Warrants are hereinafter referred to be delivered collectively as the "Underwriters' Securities." The Public Securities and the Underwriters' Securities are hereinafter referred to collectively as the "Securities." Except pursuant to clauses (a) and (bone or more of the exceptions set forth in Rule 2710(g)(2) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion Conduct Rules of the Working Capital Facility Indebtedness; providedNational Association of Securities Dealers, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which Underwriters' Purchase Option shall not be less than five (5) Business Dayssold, nor more than transferred, assigned, pledged or hypothecated, or be the later subject of (i) thirty (30) days after any hedging, short sale, derivative, put or call transaction that would result in the receipt effective economic disposition of the Underwriters' Purchase Option by the Working Capital Facility Collateral Agent holder(s) thereof, for a period of one year immediately following the date the Registration Statement (as hereinafter defined) is declared effective by the Commission (as hereinafter defined). Notwithstanding the foregoing, the Underwriters' Purchase Option shall be transferable to affiliates of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleUnderwriters.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 2 contracts
Sources: Underwriting Agreement (Restaurant Acquisition Partners, Inc.), Underwriting Agreement (Restaurant Acquisition Partners, Inc.)
Purchase Option. (a) Upon Within 15 days of the occurrence and during the continuance continuation of an Event a Triggering Event, then, in any such case, any one or more of Default Second Lien Claimholders (acting in their individual capacity or an event of default under the Working Capital Facility Documents that is not cured through one or waived within thirty (30more affiliates) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time right, but not the obligation (each Second Lien Claimholder having a ratable right to make the purchase, with each Second Lien Claimholder’s right to purchase being automatically proportionately increased by the amount not purchased by another Second Lien Claimholder), upon five (5) 5 Business Days’ prior Days advance written notice to the Working Capital Facility Collateral Agent to elect to purchase from such Second Lien Claimholders (a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Purchase Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral to First Lien Agent, as applicablefor the benefit of First Lien Claimholders, to acquire from First Lien Claimholders all (but not less than all) of the Working Capital Facility Collateral Agent right, title, and interest of First Lien Claimholders in and to the First Lien Priority Obligations and the First Lien Loan Documents. The Purchase Notice, if given, shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by in the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Purchase Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days 5 Business Days after the receipt by the Working Capital Facility Collateral First Lien Agent of the Exercise Purchase Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders First Lien Claimholders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, purchasing Second Lien Claimholders and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent purchasing Second Lien Claimholders shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility LendersFirst Lien Claimholders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleFirst Lien Priority Obligations.
(c) Upon If the purchase option is exercised, such First Lien Obligations shall be purchased pro rata among the Second Lien Creditors giving notice to the First Lien Agent of their intent to exercise the purchase option hereunder according to Second Lien Creditors’ portion of the Second Lien Obligations outstanding on the date of purchase.
(d) On the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Second Lien Claimholders shall (i) pay to the Working Capital Facility Collateral First Lien Agent, for the benefit of Working Capital Facility LendersFirst Lien Claimholders, as the purchase price therefore, therefor the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness First Lien Obligations (other than the Excess First Lien Obligations and other than First Lien Obligations cash collateralized in accordance with clause (ii) below) then outstanding and unpaid (including principal, interest, fees and expensesunpaid, including reasonable attorneys’ fees any prepayment premiums that would have been payable to First Lien Agent and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document)First Lien Lenders under the First Lien Loan Documents if the commitments thereunder shall have terminated on such date, (ii) furnish cash collateral to the Working Capital Facility Collateral First Lien Agent in such amounts as the Working Capital Facility Collateral First Lien Agent determines is reasonably necessary to secure the Working Capital Facility Collateral First Lien Agent and Working Capital Facility Lenders First Lien Claimholders in connection with any issued and outstanding letters Letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor Credit (but not in any event in an amount greater than 110103% of the aggregate undrawn face amount of such letters Letters of creditCredit), (iii) agree purchase all Bank Product Obligations and Hedging Obligations in an amount reasonably determined to reimburse the Working Capital Facility Collateral be satisfactory by First Lien Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtednessapplicable counterparty, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral First Lien Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability First Lien Claimholders for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or all expenses to the extent caused by earned or resulting from due and payable in accordance with the gross negligence or willful misconduct First Lien Loan Documents (including the reimbursement of the Working Capital Facility Collateral Agentextraordinary expenses, as determined by a final non-appealable order of a court of competent jurisdictionfinancial examination expenses, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligationsappraisal fees). Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral First Lien Agent in New York, New York, as the Working Capital Facility Collateral First Lien Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent Second Lien Trustee for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Second Lien Claimholders to the bank account designated by the Working Capital Facility Collateral First Lien Agent are received in such bank account prior to 1:00 p.m. (2:00 p.m., New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, purchasing Second Lien Claimholders to the bank account designated by the Working Capital Facility Collateral First Lien Agent are received in such bank account later than 1:00 p.m. (2:00 p.m., New York City time).
(de) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral First Lien Agent and Working Capital Facility Lenders First Lien Claimholders as to the Working Capital Facility Indebtedness First Lien Obligations so purchased or otherwise and without recourse to the Working Capital Facility Collateral First Lien Agent or Working Capital Facility Lendersany First Lien Claimholder, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders each First Lien Claimholder shall represent and warrant: (i) that the amount quoted by such First Lien Claimholder as its portion of the Working Capital Facility Indebtedness being purchasedpurchase price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (ii) that it owns, or has the Working Capital Facility Collateral Agent right to transfer to purchasing Second Lien Claimholders, the rights being transferred, and Working Capital Facility Lenders own the Working Capital Facility Indebtedness (iii) such transfer will be free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedLiens.
(ef) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent any one or more of Second Lien Claimholders exercises and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise consummates the purchase option given by set forth in this Section 5.6, (i) First Lien Agent shall have the Working Capital Facility Collateral right, but not the obligation, to immediately resign as administrative agent under the First Lien Credit Agreement, and (ii) purchasing Second Lien Claimholders shall have the right, but not the obligation, to require First Lien Agent to immediately resign as administrative agent under the Interim Notes Collateral Agent and Pari Passu Collateral Agent under First Lien Credit Agreement.
(g) In this Section 5.6, the Working Capital Facility terms “Second Lien Claimholders” shall refer exclusively to Holders under the Second Lien Indenture, and shall exclude the Trustee and the Collateral Agent. In no event shall the Second Lien Trustee or Second Lien Collateral Agent shall not commence have any foreclosure or other action to sell or otherwise realize upon responsibility for the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing obligations contained in this Section 5.6(e) 5.6 (except as explicitly agreed to by the Second Lien Trustee), and in no event shall restrict either the Second Lien Trustee or prohibit the Working Capital Facility Second Lien Collateral Agent from taking action be responsible for the execution or funding of the purchase option or expenses connected therewith. In no event shall the Second Lien Trustee be obligated to monitor any of the extent that events described in clauses (a) through (e) above, nor shall the Working Capital Facility Collateral AgentSecond Lien Trustee have any responsibility to execute, or any liability in its good faith judgment, deems connection with the execution of such action to be necessary to preserve or protect the Shared Collateralpurchase option.
Appears in 2 contracts
Sources: Intercreditor Agreement (Interface Security Systems, L.L.C.), Intercreditor Agreement (Interface Security Systems Holdings Inc)
Purchase Option. The Company hereby agrees to issue and sell to the Representative (aand/or its designees) Upon on the occurrence and during Effective Date an option (“Representative’s Purchase Option”) for the continuance purchase of an Event aggregate of Default or 450,000 units (“Representative’s Units”) for an event aggregate purchase price of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf $100. Each of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, Representative’s Units is identical to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”)Firm Units. Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent The Representative’s Purchase Option shall be irrevocable; providedexercisable, that the Interim Notes Collateral Agent in whole or Pari Passu Collateral Agentin part, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than commencing on the later of (i) thirty (30) days after the receipt by consummation of a Business Combination and one year from the Working Capital Facility Collateral Agent Effective Date and expiring on the five-year anniversary of the Exercise Notice, and Effective Date at an initial exercise price per Representative’s Unit of $8.80 (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount initial public offering price of such letters a Unit). The Representative’s Purchase Option, the Representative’s Units, the Warrants included in the Representative’s Units (“Representative’s Warrants”) and the Ordinary Shares issuable upon exercise of creditthe Representative’s Warrants are hereinafter referred to collectively as the “Representative’s Securities.” The Public Securities and the Representative’s Securities are hereinafter referred to collectively as the “Securities.” The Representative understands and agrees that there are significant restrictions against transferring the Representative’s Purchase Option and underlying securities, as set forth in Section 3 of the Representative’s Purchase Option. Specifically, the Representative’s Securities are subject to a 180-day lock-up pursuant to Rule 2710(g)(1) of the NASD Conduct Rules of the Financial Industry Regulatory Authority (“FINRA”). Additionally, (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Representative’s Purchase Option may not be sold, transferred, assigned, pledged or hypothecated for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense a one-year period (including reasonable attorneys’ fees the foregoing 180-day period) following the Effective Date except to any underwriter and legal expenses) to selected dealer participating in the Working Capital Facility Collateral Agent Offering and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent their bona fide officers or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time)partners.
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 2 contracts
Sources: Underwriting Agreement (Spring Creek Acquisition Corp.), Underwriting Agreement (Spring Creek Acquisition Corp.)
Purchase Option. As additional consideration, the Company hereby agrees to issue and sell to the Underwriters on the Effective Date an option (a“Underwriters’ Purchase Option”) Upon for the occurrence and during the continuance purchase of an Event aggregate of Default 250,000 units (or up to 287,500 units if the Over-allotment Option is exercised in full) (the “Underwriters’ Units”) for an event aggregate purchase price of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf $100.00. Each of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, Underwriters shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase receive a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion Underwriters’ Purchase Option proportional to the outstanding Obligations number of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”)Firm Units purchased by such Underwriter. Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent The Underwriters’ Purchase Option shall be irrevocable; providedexercisable, that the Interim Notes Collateral Agent in whole or Pari Passu Collateral Agentin part, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than commencing the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the Business Combination, or (ii) one year from the Effective Date, and expiring on the earlier of (x) five years from the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security thereforEffective Date, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1y) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days day immediately prior to the date day on which such amounts the Company and all of its successors have been dissolved, for cash or on a cashless basis, at an initial exercise price per Representative’s Unit of $11.50, which is equal to one hundred and fifteen percent (115%) of the initial public offering price of a Unit. The Underwriters’ Purchase Option, the Underwriters’ Units, the shares of Common Stock, the Rights included in the Underwriters’ Units (the “Underwriters’ Rights”) and the Warrants included in the Underwriters’ Units (the “Underwriters’ Warrants”) and the shares of Common Stock issuable upon exercise of the Underwriters’ Warrants and the shares of Common Stock underlying the Underwriters’ Rights are hereinafter referred to be so remitted. Interest shall be calculated to but excluding collectively as the Business Day on which such purchase “Underwriters’ Securities.” The Representative understands and sale shall occur if agrees that there are significant restrictions against transferring the amounts so paid by Underwriters’ Purchase Option during the Interim Notes Collateral Agent and/or first six (6) months after the Pari Passu Collateral AgentEffective Date, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received set forth in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount Section 3 of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedUnderwriters’ Purchase Option.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 2 contracts
Sources: Underwriting Agreement (I-Am CAPITAL ACQUISITION Co), Underwriting Agreement (I-Am CAPITAL ACQUISITION Co)
Purchase Option. (a) a. Upon the occurrence and during the continuance continuation of an Event of Default a Triggering Event, any one or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf more of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee Noteholders (acting in their individual capacity or the Interim Notes Collateral Agent, on the through one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, more affiliates) shall have the option at any time upon five right, but not the obligation (5) Business Days’ prior each Noteholder having a ratable right to make the purchase, with each Noteholder’s right to purchase being automatically proportionately increased by the amount not purchased by another Noteholder), by giving a written notice to the Working Capital Facility Collateral Agent to elect to purchase from such Noteholders (a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Purchase Notice”) to the Senior Agent, for the benefit of the Senior Lenders, within 5 Business Days after the first occurrence of a Triggering Event, to acquire from the Interim Notes Collateral Agent or Pari Passu Collateral AgentSenior Lenders all (but not less than all) of the right, as applicabletitle, and interest of the Senior Lenders in and to the Working Capital Facility Collateral Agent Senior Indebtedness and the Senior Loan Documents. Any Purchase Notice, if given, shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) b. On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent applicable Noteholder(s) in its respective Exercise the Purchase Notice (which shall not be less than five (5) within 5 Business Days, nor more than the later of (i) thirty (30) days Days after the receipt by the Working Capital Facility Collateral Agent delivery of the Exercise Notice, and (ii) ten (10) days after receipt by Purchase Notice to the Interim Notes Collateral Agent or Pari Passu Collateral Senior Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Senior Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, purchasing Noteholders and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent purchasing Noteholders shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Senior Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Senior Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon c. On the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Noteholders shall (i) pay to the Working Capital Facility Collateral Senior Agent, for the benefit of Working Capital Facility the Senior Lenders, as the purchase price therefore, therefor the full amount of the respective Purchasable Portion of all the Working Capital Facility Senior Indebtedness (other than Senior Indebtedness cash collateralized in accordance with clause (c)(ii) below) then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document)unpaid, (ii) furnish cash collateral to provide Bank Product Collateralization (as defined in the Working Capital Facility Collateral Agent Senior Credit Agreement) in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent respect of all Bank Product Obligations then outstanding, and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Senior Agent and Working Capital Facility the Senior Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or all expenses to the extent caused by earned or resulting from due and payable in accordance with the gross negligence or willful misconduct Senior Loan Documents (including the reimbursement of the Working Capital Facility Collateral Agentextraordinary expenses, as determined by a final non-appealable order of a court of competent jurisdictionfinancial examination expenses, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligationsappraisal fees). Such purchase price and cash collateral Bank Product Collateralization shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Senior Agent in New York, New York, as the Working Capital Facility Collateral Senior Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent Noteholders that delivered the Purchase Notice for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Noteholders to the bank account designated by the Working Capital Facility Collateral Senior Agent are received in such bank account prior to 1:00 p.m. (2:00 p.m., New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, purchasing Noteholders to the bank account designated by the Working Capital Facility Collateral Senior Agent are received in such bank account later than 1:00 p.m. (2:00 p.m., New York City time).
(d) d. Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Senior Agent and Working Capital Facility Senior Lenders as to the Working Capital Facility Senior Indebtedness so purchased or otherwise and without recourse to the Working Capital Facility Collateral Senior Agent or Working Capital Facility Lendersany Senior Lender, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders each Senior Lender shall represent and warrantwarrant that: (i) the amount quoted by such Senior Lender as its portion of the Working Capital Facility Indebtedness being purchasedpurchase price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (ii) that it owns, or has the Working Capital Facility Collateral Agent right to transfer to the purchasing Noteholders, the rights being transferred, and Working Capital Facility Lenders own the Working Capital Facility Indebtedness (iii) such transfer will be free and clear of Liens. Such purchase shall be documented pursuant to (A) in the case of any Liens or encumbrances Senior Indebtedness arising under the Senior Credit Agreement, an assignment and assumption agreement which shall be substantially in the form of Exhibit A-1 to the Senior Credit Agreement as in effect on the date hereof and (iiiB) in the case of any other Senior Indebtedness, such assignment and assumption agreements as may be reasonably agreed to by the Senior Lenders and the Noteholders at the time of such purchase and sale.
e. In the event that any one or more of the Noteholders exercises and consummates the purchase option set forth in this Section 9, (i) the Working Capital Facility Collateral Senior Agent and Working Capital Facility Lenders shall have the right right, but not the obligation, to assign immediately resign under the Working Capital Facility Indebtedness Senior Credit Agreement, and (ii) the assignment is duly authorized.
(e) The Working Capital Facility Collateral purchasing Noteholders shall have the right, but not the obligation, to require the Senior Agent to immediately resign under the Senior Credit Agreement and appoint a successor Senior Agent. Upon the appointment by the purchasing Noteholders of a successor Senior Agent, the Senior Agent agrees that it shall give will, at the Interim Notes sole cost and expense of such successor Senior Agent, and without any recourse, representation or warranty, take such action as such successor Senior Agent may reasonably request to transfer the Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. such successor Senior Agent.
f. In the event that during such five Business Day periodeither (i) a Purchase Notice is not received within the time period set forth in Section 9.a above or (ii) the purchasing Noteholders do not purchase from the Senior Lenders the Senior Indebtedness within the time period set forth in Section 9.b above, then (A) any Purchase Notice, if given, shall be void and (B) the Interim Notes Collateral purchase option set forth in this Section 9 shall expire and the Senior Agent and the Pari Passu Senior Lenders shall have no further obligation to the Noteholder Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent or any Noteholder under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral9.
Appears in 2 contracts
Sources: Indenture (Angiotech Pharmaceuticals Inc), Indenture (Angiotech Pharmaceuticals Inc)
Purchase Option. (a) Upon The First Lien Representative, on behalf of itself and the occurrence and during the continuance holders of First Lien Obligations, agrees that if (i) an Event of Default or an event of default (as defined in the First Lien Credit Agreement) under the Working Capital Facility First Lien Documents that has occurred and is not cured continuing and as a result of such Event of Default under the First Lien Documents (A) the First Lien Obligations have been accelerated or waived within thirty (30B) daysthe Majority Lenders are pursuing remedies of foreclosure against a material portion of the Collateral, (ii) an Insolvency or Liquidation Proceeding is commenced by or against the Borrower or any other Obligor, or (iii) a Standstill Period is in effect (any of such events, a “Trigger Event”), the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, Second Lien Claimholders shall have the right and option to purchase the aggregate amount of outstanding First Lien Obligations (including unfunded commitments) at a price of not less than par, plus all accrued and unpaid interest and fees, together with cash collateral for all outstanding letters of credit in an amount equal to 105% of the undrawn and available amount of all letters of credit outstanding under the First Lien Documents and a payment for all then outstanding Eligible Hedge Contracts at a price equal to the sum of any time upon five (5) Business Days’ prior unpaid amounts then due in respect of such Eligible Hedge Contracts plus or minus a net amount quoted by the First Lien Claimholder party to such Eligible Hedge Contract that would be paid to assign or novate each such Eligible Hedge Contract in the ordinary course of its business. Such sale shall be without warranty or representation or recourse other than as provided in standard LSTA documentation for par trades. To exercise the option following a Trigger Event, the Second Lien Representative shall deliver a written notice to the Working Capital Facility Collateral Agent First Lien Representative and the First Lien Lenders, which notice shall be deemed an irrevocable offer to elect the First Lien Claimholders to purchase a portion of the Working Capital Facility Indebtedness from First Lien Obligations on the Working Capital Facility Lenders, ratably terms set forth in proportion to the outstanding Obligations of each outstanding Series of Secured Debt this Section (in each case, the “Purchasable PortionPurchase Notice”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On Upon receipt of a Purchase Notice the date specified by parties shall endeavor to close within twenty (20) days after such receipt (such entire period referred to as the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which “Purchase Period”). Neither the First Lien Representative nor the First Lien Claimholders shall not be less than five (5) Business Dayscommence any Enforcement Action during the Purchase Period; provided, nor more than the later of however, (i) thirty (30) days after if the receipt by the Working Capital Facility Collateral Agent holders of the Exercise NoticeSecond Lien Obligations reject such offer or do not timely accept such offer, and or (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agentif, as applicable, upon expiration of the information required to be delivered Purchase Period, the parties have not closed the transaction, then the First Lien Representative and the holders of First Lien Obligations shall have no further obligations pursuant to clauses (a) this Section and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by may commence any Obligor Enforcement Action in their sole discretion in accordance with the terms First Lien Documents and this Agreement; provided that if during the Purchase Period, a First Lien Claimholder determines Exigent Circumstances exist, (A) it may or may direct the First Lien Representative to take appropriate Enforcement Actions to preserve the value of the Working Capital Facility Documents as Collateral or the amount which could reasonably be expect to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, be recovered thereon and (B) nothing contained in clause (A) above shall restrict or limit prevent the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to of a Hedge Contract and the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such netting of amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders due in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time)thereof.
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 1 contract
Purchase Option. (a) Upon Notwithstanding anything in this Agreement to the occurrence and during contrary, on or at any time within sixty (60) days after the continuance Second Lien Collateral Trustee receives notice of (i) the commencement of an Event of Default Insolvency or an event of default under Liquidation Proceeding or (ii) the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf acceleration of the Interim Notes NoteholdersPriority Lien Obligations, and the Pari Passu Collateral Agent on behalf holders of the Pari Passu Lenders, after written demand by Second Lien Debt and each of their respective designated Affiliates (the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall “Second Lien Purchasers”) will have the right, at their sole option and election (but will not be obligated), at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Purchase Notice”) to the Priority Lien Agent, to purchase from the Interim Notes Collateral Priority Lien Secured Parties all (but not less than all) Priority Lien Obligations (including unfunded commitments but excluding Excess Priority Lien Obligations) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing that are outstanding on the date of such purchase. Promptly following the receipt of such notice, the Priority Lien Agent or Pari Passu Collateral Agent, as applicable, will deliver to the Working Capital Facility Second Lien Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt Trustee a statement of the information required amount of Priority Lien Debt (other than Excess Priority Lien Obligations), other Priority Lien Obligations and DIP Financing then outstanding and the amount of the cash collateral requested by the Priority Lien Agent to be delivered pursuant to clauses Section 3.06(b)(ii) below. The right to purchase provided for in this Section 3.06 will expire unless, within 10 Business Days after the receipt by the Second Lien Collateral Trustee of such notice from the Priority Lien Agent, the Second Lien Collateral Trustee delivers to the Priority Lien Agent an irrevocable commitment of the Second Lien Purchasers to purchase all (a) and (bbut not less than all) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion Priority Lien Obligations (including unfunded commitments but excluding Excess Priority Lien Obligations) and any loans provided by any of the Working Capital Facility Indebtedness; provided, further, that Priority Lien Secured Parties in connection with a DIP Financing and to otherwise complete such revocation is in writing duly signed by purchase on the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights terms set forth under this Section 5.63.06. Unless the right to purchase shall have expired in accordance with the preceding sentence, neither the applicable Priority Lien Representative nor any holder of Priority Lien Obligations will enforce or exercise any rights or remedies with respect to the Collateral after receipt of the Purchase Notice by such Priority Lien Representative.
(b) On the date specified by the Interim Notes Second Lien Collateral Agent or Pari Passu Collateral Agent Trustee (on behalf of the Second Lien Purchasers) in its respective Exercise Notice such irrevocable commitment (which shall not be less than five (5) Business Days nor more than 20 Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Priority Lien Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)irrevocable commitment), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, Second Lien Purchasers all (but not less than all) Priority Lien Obligations (including unfunded commitments but excluding Excess Priority Lien Obligations) and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless any loans provided by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events Priority Lien Secured Parties in connection with a DIP Financing that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon are outstanding on the date of such purchase sale, subject to any required approval of any Governmental Authority then in effect, if any, and only if on the date of such sale, the Interim Notes Collateral Priority Lien Agent and/or receives the Pari Passu Collateral Agent, as applicable, shall following:
(i1) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenderspayment, as the purchase price thereforefor all Priority Lien Obligations sold in such sale, of an amount equal to the full amount of all Priority Lien Obligations (other than (x) outstanding letters of credit as referred to in clause (ii) below and (y) any Priority Lien Obligations constituting Excess Priority Lien Obligations) and loans provided by any of the respective Purchasable Portion of all the Working Capital Facility Indebtedness Priority Lien Secured Parties in connection with a DIP Financing then outstanding and unpaid (including principal, interest, fees and expensesfees, including reasonable attorneys’ fees and legal expenses expenses, but excluding any early termination fee contingent indemnification obligations for which no claim or prepayment penalty demand for payment has been made at or premium payable pursuant prior to such time); provided that in the case of Hedging Obligations that constitute Priority Lien Obligations the Second Lien Purchasers shall cause the applicable agreements governing such Hedging Obligations to be assigned and novated or, if such agreements have been terminated, such purchase price shall include an amount equal to the Working Capital Facility Agreement or sum of any other Working Capital Facility Document)unpaid amounts then due in respect of such Hedging Obligations, calculated using the market quotation method and after giving effect to any netting arrangements;
(ii2) furnish a cash collateral to the Working Capital Facility Collateral Agent deposit in such amounts amount as the Working Capital Facility Collateral Priority Lien Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with payment of any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit constituting Priority Lien Obligations that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent may become due and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor payable after such sale (but not in any event in an amount greater than 110% one hundred five percent (105%) of the amount then reasonably estimated by the Priority Lien Agent to be the aggregate undrawn face outstanding amount of such letters of creditcredit at such time), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted (A) held by wire transfer the Priority Lien Agent as security solely to reimburse the issuers of such letters of credit that become due and payable after such sale and any fees and expenses incurred in federal funds to connection with such bank account letters of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing credit and (B) returned to the Interim Notes Second Lien Collateral Agent and Pari Passu Collateral Agent for Trustee (except as may otherwise be required by applicable law or any order of any court or other Governmental Authority) promptly after the expiration or termination from time to time of all payment contingencies affecting such purpose not less than three letters of credit; and
(3) Business Days prior any agreements, documents or instruments which the Priority Lien Agent may reasonably request pursuant to which the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding Second Lien Collateral Trustee and the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received Second Lien Purchasers in such bank account prior to 1:00 p.m. (New York City time) sale expressly assume and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount adopt all of the Working Capital Facility Indebtedness being purchased, (ii) that obligations of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Priority Lien Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence Priority Lien Secured Parties under the exercise of Priority Lien Documents and in connection with loans provided by any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s Priority Lien Secured Parties in connection with a DIP Financing on and after the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that date of the purchase and sale with respect to and the Working Capital Facility Indebtedness provided for herein shall have closed Second Lien Collateral Trustee (or any other representative appointed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment holders of a majority in full aggregate principal amount of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(eSecond Lien Term Loans then outstanding) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateralbecomes a successor agent thereunder.
Appears in 1 contract
Purchase Option. (a) Upon the occurrence and during the continuance continuation of an Event of Default a Triggering Event, then, in any such case, any one or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf more of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee Term Loan Creditors (acting in their individual capacity or the Interim Notes Collateral Agent, on the through one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, more affiliates) shall have the option right, but not the obligation (each Term Loan Creditor having a ratable right to make the purchase, with each Term Loan Creditor’s right to purchase being automatically proportionately increased by the amount not purchased by another Term Loan Creditor), upon at any time upon five (5) least 5 Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase from (or on behalf of) such Term Loan Creditor (a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Purchase Notice”) to ABL Representative to acquire from the Interim Notes Collateral Agent or Pari Passu Collateral AgentABL Secured Parties all (but not less than all) of the right, as applicabletitle, and interest of the ABL Secured Parties in and to the Working Capital Facility Collateral Agent ABL Obligations (other than, at the purchasing Term Loan Creditors’ election, Excess ABL Obligations) and the ABL Documents. The Purchase Notice, if given, shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by in the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Purchase Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days 10 Business Days after the receipt by the Working Capital Facility Collateral Agent ABL Representative of the Exercise Purchase Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell ABL Secured Parties shall, subject to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no required approval of any court or other regulatory or governmental authority is required for such salethen in effect, sell to the purchasing Term Loan Creditors, and the purchasing Term Loan Creditors shall purchase from the ABL Secured Parties, the ABL Obligations (other than Excess ABL Obligations, if applicable).
(c) Upon On the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall purchasing Term Loan Creditors shall:
(i) pay to the Working Capital Facility Collateral AgentABL Representative, for the benefit of Working Capital Facility Lendersthe ABL Secured Parties, as the purchase price thereforetherefor, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness ABL Obligations then outstanding and unpaid (including, without limitation, the amount of all expenses to the extent earned or due and payable in accordance with the ABL Documents (including principalthe reimbursement of attorneys fees, interest, fees and financial examination expenses, including reasonable attorneys’ fees and legal expenses but excluding appraisal fees)), other than (A) Excess ABL Obligations, if applicable, (B) indemnification obligations for which no claim or demand for payment has been made at such time, (C) ABL Obligations cash collateralized in accordance with clause (c)(ii) below, and (D) any early termination prepayment penalty, fee or premium then due and payable under the terms of the ABL Documents; provided, that if the purchasing Term Loan Creditors receive any such prepayment penalty penalty, fee or premium payable pursuant in respect of the purchased ABL Obligations within three months after the consummation of the purchase option set forth in this Section 3.7, such amount shall be held in trust for the benefit of the ABL Secured Parties and forthwith paid over to ABL Representative for the Working Capital Facility Agreement or any other Working Capital Facility Document)benefit of the ABL Secured Parties, and
(ii) furnish cash collateral to the Working Capital Facility Collateral Agent ABL Representative in such amounts as the Working Capital Facility Collateral Agent ABL Representative determines is reasonably necessary to secure ABL Representative and the Working Capital Facility Collateral Agent and Working Capital Facility Lenders ABL Secured Parties in connection with respect of (A) any issued and outstanding letters Letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor Credit (but not in any event in an amount greater than 110105% of the aggregate undrawn face amount of such letters Letters of credit), Credit) (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited such cash collateral shall be applied to the Working Capital Facility Indebtednessreimbursement of any drawing under a Letter of Credit as and when such drawing is paid and, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect if a Letter of Qualified Indemnification Claims which in fact result in any lossCredit expires undrawn, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received collateral held by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders ABL Representative in respect of such Shared Collateral and (2) any amounts that are required to Letter of Credit shall be turned over remitted to the Working Capital Facility Collateral Agent or Term Loan Representative for the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, benefit of the purchasing Term Loan Creditors) and (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any Banking Services Obligations and Swap Agreement Obligations (such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds applied to such bank account the reimbursement of the Working Capital Facility Collateral Agent Banking Services Obligations and Swap Agreement Obligations as and when such obligations become due and payable and, at such time as all of the Banking Services Obligations and Swap Agreement Obligations are paid in New Yorkfull, New York, as the Working Capital Facility Collateral Agent may designate remaining cash collateral held by ABL Representative in writing respect of Banking Services Obligations and Swap Agreement Obligations shall be remitted to the Interim Notes Collateral Agent and Pari Passu Collateral Agent Term Loan Representative for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount benefit of the Working Capital Facility Indebtedness being purchasedpurchasing Term Loan Creditors), (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.and
Appears in 1 contract
Sources: Intercreditor Agreement
Purchase Option. The First Lien Agent, on behalf of itself and the First Lien Creditors, agrees that if (ai) Upon the occurrence and during the continuance of an Event of Default or an event of default under the Working Capital Facility First Lien Documents that has occurred and is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholderscontinuing, and as a result of such event of default under the Pari Passu Collateral Agent on behalf of First Lien Documents the Pari Passu LendersFirst Lien Obligations have been accelerated, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, (ii) there is a payment default with respect to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Second Lien Obligations, as applicableor (iii) any Insolvency Proceeding has been commenced (or is then continuing) with respect to any Loan Party under a First Lien Agreement, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase each a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable PortionTrigger Event”). Such notice (an “Exercise Notice”) from , then the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, Second Lien Note Holders shall have the right and option to purchase the entire aggregate amount (but not less than the entire aggregate amount) of outstanding First Lien Obligations (excluding First Lien Excess Obligations) (including unfunded and unterminated commitments) at a price equal to par value of the outstanding principal amount thereof, plus all accrued and unpaid interest, fees and other amounts of First Lien Obligations, together with cash collateral for all outstanding letters of credit in an amount equal to 105% of the undrawn and available amount of such letters of credit outstanding under the applicable First Lien Agreement, and cash collateral for then outstanding Swap Obligations in an amount equal to unpaid amounts then due in respect of such Swap Obligations; provided that in no event will the calculation of the amount of such outstanding First Lien Obligations include any premiums (other than breakage costs). In the event that the amount of cash collateral provided by the Second Lien Note Holders exceeds the actual obligations that such cash collateral is securing, the amount of such excess shall be returned to the Second Lien Note Holders promptly following satisfaction in full of such obligations. Such sale shall be without warranty or representation or recourse other than as provided in standard Loan Syndication Trading Association documentation for par trades. To exercise the option following any Trigger Event, the Second Lien Trustee upon receipt of indemnification in accordance with the Second Lien Indenture from the Purchasing Second Lien Note Holders, together with a written direction from the Second Lien Note Holders holding at least 15% of the principal amount of Second Lien Notes then outstanding (the “Purchasing Second Lien Note Holders”) shall deliver a written notice prepared by and on behalf of such Purchasing Second Lien Note Holders to the First Lien Agent, which notice must be given within ten 60 days after the occurrence of any such Trigger Event and shall be deemed an irrevocable exercise of its option to purchase the First Lien Obligations on the terms set forth in this Section. Upon delivery of such notice, the Purchasing Second Lien Note Holders shall be obligated to purchase (10on a pro rata basis), and the First Lien Creditors shall be obligated to sell, the entire aggregate amount of outstanding First Lien Obligations for the purchase price described in this Section within fifteen (15) days following receipt after delivery of such notice, nor shall the Second Lien Notes Trustee have any responsibility to execute, or liability in connection with, the execution of such purchase. Nothing contained in this Section 2.7 shall limit the ability of the information required First Lien Creditors to be delivered pursuant enforce any of their rights or remedies with respect to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent First Lien Obligations at any time prior to the expiration date of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified purchase by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent Second Lien Noteholders of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor First Lien Obligations in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtednessthis Section 2.7. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in In no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have Second Lien Trustee be obligated to monitor any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility ObligationsTrigger Event. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.[INTERCREDITOR AGREEMENT]
Appears in 1 contract
Sources: Second Lien Intercreditor Agreement (Black Elk Energy Finance Corp.)
Purchase Option. Without prejudice to the enforcement of the Senior Claimholders remedies, the Senior Claimholders agree that following (ai) Upon an acceleration of the occurrence and during Senior Obligations in accordance with the continuance terms of an Event of Default or an event of the Senior Credit Agreement, (ii) a payment default under the Working Capital Facility Documents Senior Credit Agreement that is has not been cured (or waived by the Senior Claimholders) within thirty 60 days of the occurrence thereof, (30iii) daysthe commencement of any Insolvency or Liquidation Proceeding or (iv) the exercise of any Enforcement Action by the Senior Claimholders in respect of a material portion of the Collateral (each, a “Purchase Event”), the Interim Notes Collateral Revolving and Term Loan Claimholders may, at their sole expense and effort, upon notice from the Revolving and Term Loan Administrative Agent on behalf at the direction of the Interim Notes Noteholders, such Revolving and Term Loan Claimholders to Borrower and the Pari Passu Collateral Senior Administrative Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, (who shall have the option at any time upon five (5) Business Days’ prior written forward such notice to the Working Capital Facility Collateral Agent to other Senior Claimholders), irrevocably elect to purchase a portion of the Working Capital Facility Indebtedness acquire from the Working Capital Facility LendersSenior Claimholders, ratably in proportion without warranty or representation or recourse from or to the outstanding Obligations of each outstanding Series of Secured Debt Senior Claimholders, all (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (bbut not less than all) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion Senior Obligations and all rights of the Working Capital Facility IndebtednessSenior Claimholders under the Senior Loan Documents; provided, further, provided that (w) any such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not purchase option must be less than five (5) Business Days, nor more than the later of (i) thirty (30) exercised within 15 days after the receipt by initial occurrence of any Purchase Event, (x) the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Senior Administrative Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Senior Claimholders shall retain all rights to be indemnified or to be held harmless by any Obligor the Obligors in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral AgentSenior Loan Documents, but (y) such assignment shall not retain conflict with any rights to the security thereforlaw, and (B) nothing contained in clause (A) above shall restrict rule or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent regulation or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval order of any court or other regulatory or governmental authority is required for such sale.
having jurisdiction, and (cz) Upon the date of such purchase Revolving and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Term Loan Claimholders shall (i) pay have paid to the Working Capital Facility Collateral Senior Administrative Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount account of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principalSenior Claimholders, interestin immediately available funds, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110equal to 100% of the aggregate undrawn face amount principal of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent Indebtedness plus all accrued and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment unpaid interest thereon plus all accrued and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense unpaid fees (including reasonable attorneys’ attorney’s fees and legal expensescosts) and premiums (including the Make-Whole Premium (as defined in the Senior Credit Agreement) irrespective of any Make-Whole Exception (as defined in the Senior Credit Agreement) or whether the Make-Whole Premium is due or payable under the Senior Credit Agreement) and any breakage costs and expenses plus all the other Senior Obligations then outstanding. In order to effectuate the Working Capital Facility Collateral foregoing, the Senior Administrative Agent and Working Capital Facility Lenders; providedshall (in consultation with the Senior Claimholders) calculate, that (A) in no event will upon the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess written request of the Revolving and Term Loan Administrative Agent acting at the direction of the Revolving and Term Loan Claimholders from time to time, the amount in cash proceeds of Shared Collateral received by that would be necessary to so purchase the Interim Notes Collateral Agent or Senior Obligations. If the Pari Passu Collateral Agent, as applicable, net of right set forth in this Section 5.7 is exercised: (1) the reasonable costs parties shall endeavor to close promptly thereafter but in any event within twenty (20) Business Days after the notice set forth in the first sentence of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and this Section 5.7, (2) any amounts that are required to such purchase of the Senior Obligations shall be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including exercised pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses documentation mutually and reasonably acceptable to the extent caused by or resulting from the gross negligence or willful misconduct each of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order Senior Administrative Agent and the Revolving and Term Loan Administrative Agent acting at the direction of a court of competent jurisdictionthe Revolving and Term Loan Claimholders, and (D3) any amounts reimbursed by such Senior Obligations shall be purchased pro rata among the Interim Notes Collateral Revolving and Term Loan Claimholders giving notice to the Revolving and Term Loan Administrative Agent or of their intent to exercise the Pari Passu Collateral Agent purchase option hereunder according to such Revolving and Term Loan Claimholders’ portion of the Revolving and Term Loan Obligations outstanding on the date of purchase pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared CollateralSection 5.7. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice any one or more of the Interim Notes Collateral Agent’s Revolving and the Pari Passu Collateral Agent’s intention to exercise Term Loan Claimholders exercises the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under set forth in this Section 5.6, 5.7: (A) the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Senior Administrative Agent shall have received payment in full the right, but not the obligation, to immediately resign under the Senior Loan Documents upon the closing of such purchase and (B) the purchasing Revolving and Term Loan Claimholders shall have the right, but not the obligation, to require the Senior Administrative Agent to resign pursuant to the terms of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralSenior Loan Documents.
Appears in 1 contract
Purchase Option. (a) Upon Senior Lender and Junior Lender further agree that Junior Lender shall have the occurrence and during right, but not the continuance obligation, to purchase the Senior Loan Documents in accordance with the provisions of an Event this Section 9. Senior Lender agrees to provide Junior Lender with written notice of Default or any acceleration of the maturity of Senior Note due to an event of default under the Working Capital Facility any Senior Loan Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option Junior Lender at any time upon five (5) Business Days’ prior written notice to thereafter until the Working Capital Facility Collateral Agent to elect to purchase a portion earlier of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses following: (a) and the cure of such default by Borrower, or (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt giving of such notice, the Junior Lender shall have the right, but not the obligation, to purchase the Senior Loan Documents by payment in full in cash to Senior Lender of an amount (the “Purchase Price”) equal to the amount which would be required to repay the Indebtedness, as defined in the Senior Mortgage, in full at the time of such payment and obtain a full release or assignment (without recourse, except as hereinafter provided in this Section 11) of such Senior Mortgage if such payment were made by the Working Capital Facility Collateral Agent Borrower (1) expressly including all of the Exercise Noticefollowing: (a) accrued but unpaid interest, including interest at the default rate, (b) late fees, (c) collection costs or enforcement costs, (d) taxes paid by the Senior Lender, (e) insurance premiums paid by the Senior Lender, and (iie) ten (10) days after receipt other expenditures made by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor Senior Lender in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court Senior Mortgage or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Senior Loan Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrantto: (i) protect the amount validity, priority or enforceability of any of the Working Capital Facility Indebtedness being purchased, Senior Loan Documents or the liens or security interests created thereby; (ii) that protect or preserve any collateral or security granted, assigned or pledged to it under the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and Senior Loan Documents; (iii) to perform any obligation of the Working Capital Facility Collateral Agent Borrower under any lease to any tenant of the Property; or (iv) cure any default of the Borrower under the Senior Loan Documents, but (2) expressly excluding any prepayment fees, prepayment premiums, yield maintenance fees or exit fees provided in the Senior Note or other Senior Loan Documents. Upon payment to Senior Lender of the Purchase Price as provided in this Exhibit “B”, Senior Lender shall transfer and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness Senior Note and other Senior Loan Documents to Junior Lender WITHOUT RECOURSE and without any representation or warranty whatsoever, express or implied, except only that the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees Senior Lender shall represent that it shall give is the Interim Notes Collateral Agent owner and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice holder of the Interim Notes Collateral Agent’s Senior Loan Documents and that it has not previously pledged, transferred or hypothecated the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateralsame.
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Sources: Subordination and Intercreditor Agreement (TNP Strategic Retail Trust, Inc.)
Purchase Option. (a) Upon the occurrence and during the continuance Any holder of an Event of Default or an event of default under the Working Capital Facility Documents a Subordinated Cerberus Note that is not cured controlled or waived within thirty (30) daysmanaged by Cerberus Capital Management, L.P. or any affiliate thereof, or any other holder of a Subordinated Cerberus Note that is designated to the Interim Notes Collateral Agent on behalf of in writing by Cerberus Capital Management, L.P. or any affiliate thereof as having rights under this Section 9 (the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, "Electing Junior Lender") shall have the option at any time upon five (5) not less than 10 Business Days’ ' prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion all but not less than all of the Working Capital Facility Senior Indebtedness from the Working Capital Facility Collateral Agent and the Lenders, ratably in proportion . Any such notice from the Electing Junior Lender to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided. If more than one holder of the Subordinated Cerberus Notes shall have delivered a notice indicating its intention to purchase all of the Senior Indebtedness, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and the Lenders shall have no obligations with respect to such notices other than with respect to the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke first such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is notice received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6Agent.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent Electing Junior Lender in its respective Exercise Notice such notice (which shall not be less than five (5) Business Days10 days, nor more than the later of (i) thirty (30) days 30 days, after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by notice from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, Electing Junior Lender of the information required its election to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of exercise such dates, the “Outside Closing Date”)option), the Working Capital Facility Collateral Agent and Working Capital Facility the Lenders shall sell shall, subject to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no required approval of any court or other regulatory or governmental authority is required for such salethen in effect, if any, sell to the Electing Junior Lender, and the Electing Junior Lender shall purchase from the Collateral Agent and the Lenders, the Senior Indebtedness, together with their interests in all assets of the Loan Parties securing the Senior Indebtedness (collectively, "Senior Collateral").
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Electing Junior Lender shall (i) pay to the Working Capital Facility Collateral Agent, for Agent and the benefit of Working Capital Facility Lenders, Lenders in cash as the purchase price therefore, therefor the full amount of the respective Purchasable Portion (at par value) of all the Working Capital Facility Senior Indebtedness then outstanding and unpaid (including principal, interest, early termination and other fees and expenses, including reasonable out-of-pocket attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ ' fees and legal expenses).
(d) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal Federal funds to such the bank account of the Working Capital Facility Collateral Agent in New York, New Yorkfor the benefit of the Lenders, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Junior Agent and Pari Passu Collateral Agent the Electing Junior Lender for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurposes. Interest shall be calculated to to, but excluding excluding, the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Electing Junior Lender to the bank account accounts designated by the Working Capital Facility Collateral Agent Lenders are received in such bank account accounts prior to 1:00 p.m. (11:00 a.m. New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Electing Junior Lender to the such bank account designated by the Working Capital Facility Collateral Agent accounts are received in such bank account accounts later than 1:00 p.m. (11:00 a.m. New York City time).
(de) Such purchase shall be expressly made without representation or warranty of any kind by any of the Working Capital Facility Collateral Agent and Working Capital Facility or the Lenders as to the Working Capital Facility Indebtedness Senior Indebtedness, the Collateral or otherwise otherwise, and without recourse to any of the Working Capital Facility Collateral Agent or Working Capital Facility and the Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders each Lender shall represent and warrant: :
(i) the amount of the Working Capital Facility Senior Indebtedness being purchasedpurchased from it (but without representation or warranty as to the collectability, validity or enforceability of such Senior Indebtedness); (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility such Lender owns such Senior Indebtedness free and clear of any Liens liens or encumbrances created by it; and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have that such Lender has the right to assign the Working Capital Facility such Senior Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent authorized by it. Upon the purchase by the Electing Junior Lender of the Senior Indebtedness, the Electing Junior Lender agrees that it shall give to indemnify and hold harmless the Interim Notes Collateral Agent and the Pari Passu Lenders from and against all loss, cost, damage or expense (including attorneys' fees and legal expenses) suffered or incurred by the Collateral Agent five (5) Business Days prior written notice of its intention to commence or the exercise of Lenders arising from or in any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send way related to the Working Capital Facility Collateral Agent acts or omissions of such Junior Lender after the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateralpurchase.
Appears in 1 contract
Purchase Option. (a) Upon the occurrence and during the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, Seragen shall have the option right, exercisable in its discretion at any time upon five during the four (54) Business Days’ prior year period following the date of this Agreement, to purchase all (but not less than all) of Service Provider's assets at a purchase price in cash equal to the "Purchase Price" (as determined in accordance with Section 7.03). If Seragen desires to exercise its purchase right, it shall do so by providing written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent Service Provider on or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration fourth anniversary of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6date hereof.
(b) On The closing of any such purchase by Seragen shall be held at the date specified by principal office of Seragen at 11:00 A.M. local time on the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice ninetieth (which shall not be less than five (590th) Business Days, nor more than the later of (i) thirty (30) days day after the receipt by Service Provider of Seragen's election to exercise its purchase option, or at such other time and place as the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell parties to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agenttransaction may agree. At such closing, Service Provider shall deliver such instruments of sale and assignment as Seragen shall reasonably require, accompanied by all requisite transfer taxes, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights assets to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral transferred shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens liabilities, obligations, liens, claims, options, charges, encumbrances, or encumbrances rights of others (except for any liens, claims, options, charges, encumbrances, or rights of others assumed by Service Provider from Seragen in connection with the transactions contemplated by the Asset Purchase Agreement) and (iii) the Working Capital Facility Collateral Agent Service Provider shall so represent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness warrant, and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees further represent and warrant that it is the holder of all right, title and interest in the assets being transferred. Seragen shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right deliver at such closing, by certified or remedy against the Shared Collateral. In the event that during such five Business Day periodofficial bank check, the Interim Notes Collateral Agent and purchase price for the Pari Passu Collateral Agent shall send assets. Both parties to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent transaction shall execute such additional documents as are otherwise appropriate. Seragen shall not commence be required to assume any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale liabilities with respect to the Working Capital Facility Indebtedness provided purchased assets, except for herein shall have closed liabilities arising after the closing date under written contracts assumed by Seragen and for any liens, claims, options, charges, encumbrances, or rights of others assumed by Service Provider from Seragen in connection with the transactions contemplated by the Outside Closing Date Asset Purchase Agreement. Service Provider shall fully cooperate in obtaining all third party consents required, and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agentall other actions reasonably requested by Seragen, in its good faith judgment, deems such action to be necessary to preserve or protect connection with the Shared Collateraltransaction.
Appears in 1 contract
Sources: Service Agreement (Seragen Inc)
Purchase Option. (a) Upon Without prejudice to the occurrence enforcement of remedies of the Collateral Trustee and the holders of Priority Lien Obligations, each Priority Lien Representative and the holders of Priority Lien Obligations agree that at any time during the continuance 90 day period following the earliest of:
(1) a payment default in respect of any Priority Lien Obligations;
(2) an Event acceleration of Default or an any Priority Lien Obligations;
(3) any event of default under the Working Capital Facility Documents in respect of any Priority Lien Obligations that is not cured has occurred and continued for a period for 90 days or waived within thirty more;
(304) days, the Interim Notes Collateral Agent on behalf an Act of Required Debtholders in respect of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf to which holders of at least 25% of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes applicable Parity Lien Obligations or Pari Passu Obligations, as applicable, shall have the option at any time upon five (5) Business Days’ prior objected in a written notice to the Working Capital Facility Collateral Agent Trustee, each Priority Lien Representative and each Parity Lien Representative; and
(5) the commencement of any Insolvency or Liquidation Proceeding (such 90 day period, the “Purchase Option Period”), the holders of any Parity Lien Obligations (or one or more of their Affiliates or designees) will, upon written notice (with respect to elect clause (4) above, delivered by holders of at least 25% of the Parity Lien Obligations), in each case through their Parity Lien Representative, to the Issuer, the Collateral Trustee and each Priority Lien Representative pursuant to Section 7.7 (a “Purchase Notice”), have the option to purchase the entire aggregate amount of then outstanding Priority Lien Obligations, for cash consideration in immediately available funds, at par plus accrued interest plus any fees and out-of-pocket expenses that at such time are accrued and unpaid but would be, under the terms of the relevant Priority Lien Documents, reimbursable by the Issuer, without warranty or representation or recourse, on a pro rata basis for cash consideration in immediately available funds or with respect to any Priority Lien Obligations that are Hedging Obligations at a price equal to the net aggregate amount then owing to counterparties under such Hedge Agreements, including all amounts owing to the counterparties as a result of the termination (or early termination) thereof (collectively, the “Purchase Price”). For the avoidance of doubt, the Purchase Price will exclude any commitment or other fees that would have become due and payable in respect of unfunded commitments under the relevant Priority Lien Documents. Within 5 Business Days after receipt of the Purchase Notice, each Priority Lien Representative will deliver to the Collateral Trustee and the Issuer a statement of the amount of Priority Lien Debt and other Priority Lien Obligations then outstanding for which it is the Priority Lien Representative, which statement will also include wire transfer information and the portion of the Working Capital Facility Indebtedness from Purchase Price to be remitted to each holder of Priority Lien Obligations then outstanding for which it is the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt Priority Lien Representative (in each case, the “Purchasable PortionCalculation Notice”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) Within 5 Business Days after receipt of the Calculation Notice, the Collateral Trustee will send a copy of the Calculation Notice to the Issuer and each Parity Lien Representative and will include a statement as to the aggregate principal amount of Priority Lien Obligations that each holder of Parity Lien Obligations is entitled to purchase pursuant to this Section 2.12. Within 10 Business Days after receipt of the Calculation Notice and the information referenced in the immediately preceding sentence by such holders of Parity Lien Obligations, each holder of Parity Lien Obligations (together with its respective Affiliates and designees, collectively, the “Purchasers”) shall deliver written notice to the Collateral Trustee of its intent to exercise its purchase option hereunder, and such written notice shall constitute an irrevocable commitment from such Purchaser to purchase its pro rata share of the Priority Lien Obligations at the Purchase Price. Any holder of Parity Lien Obligations who fails to deliver such notice (each, a “Declining Holder”) shall be deemed to have elected not to exercise its purchase option hereunder, and the Collateral Trustee shall promptly following such 10 Business Day period allocate, in a written notice to the remaining Purchasers, each Declining Holder’s pro rata share of the Priority Lien Obligations ratably among the remaining Purchasers (the “Accepting Holders”). Upon receipt of notice from the Collateral Trustee of an allocation of additional Priority Lien Obligations, each Accepting Holder shall deliver written notice to the Collateral Trustee of its intent to exercise its purchase option hereunder with respect to such additional Priority Lien Obligations. Any holder of Parity Lien Obligations who fails to deliver such notice within 10 Business Days after receipt shall be deemed not to exercise its purchase option hereunder with respect to such additional Priority Lien Obligations. Following such 10 Business Day period, to the extent that any Priority Lien Obligations have not been elected for purchase, the Collateral Trustee shall offer each Accepting Holder the option to purchase any such remaining Priority Lien Obligations on a pro rata basis. If not all remaining Priority Lien Obligations are elected for purchase by the Accepting Holders on a pro rata basis, the Collateral Trustee may then offer the Accepting Holders the opportunity to purchase more than a pro rata allocation of Priority Lien Obligations, so long as no other holder of Parity Lien Obligations shall have object to such non-pro rata allocation.
(c) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent Trustee on behalf of the Exercise Notice, and Purchasers (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such datesdate, the “Outside Closing Purchase Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders holders of the Priority Lien Obligations shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that Purchasers all (Abut not less than all) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as Priority Lien Obligations that are outstanding on the Purchase Date at the Purchase Price, subject to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain (i) any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no required approval of any court or other regulatory or governmental authority is required for then in effect and (ii) compliance with all other applicable laws. Upon the sale of the Priority Lien Obligations to the Purchasers, all commitments to fund any purchased Priority Lien Obligations will automatically terminate, and Issuer hereby consents to such saletermination.
(cd) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral The Purchase Price shall be remitted by wire transfer in federal funds to such bank account accounts of the Working Capital Facility Collateral Agent Priority Lien Representatives set forth in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedCalculation Notice. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur occurs if the amounts so paid by the Interim Notes Collateral Agent and/or Trustee and holders of the Pari Passu Collateral Agent, as applicable, Parity Lien Obligations to the bank account accounts designated by the Working Capital Facility Collateral Agent Priority Lien Representatives are received in such bank account accounts prior to 1:00 p.m. (12:00 p.m., New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Trustee and holders of the Parity Lien Obligations to the bank account accounts designated by the Working Capital Facility Collateral Agent Priority Lien Representatives are received in such bank account accounts later than 1:00 p.m. (12:00 p.m., New York City time).
(de) Such purchase The sale of the Priority Lien Obligations shall be expressly made without warranty or representation or warranty of any kind by the Working Capital Facility Collateral Agent Priority Lien Representatives and Working Capital Facility Lenders the holders of Priority Lien Obligations as to the Working Capital Facility Indebtedness Priority Lien Obligations, the Collateral or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility LendersPriority Lien Representatives and the holders of Priority Lien Obligations, except that each of the Working Capital Facility Collateral Agent Priority Lien Representatives and Working Capital Facility Lenders the holders of Priority Lien Obligations shall represent and warrantwarrant severally as to the Priority Lien Obligations then owing to it: (i) the amount of the Working Capital Facility Indebtedness Priority Lien Obligations being purchasedpurchased as reflected in the books and records of the Priority Lien Representatives or such holders of Priority Lien Obligations (but without representation or warranty as to the collectability, validity or enforceability thereof); (ii) that the Working Capital Facility Collateral Agent Priority Lien Representatives and Working Capital Facility Lenders such holders of the Priority Lien Obligations own the Working Capital Facility Indebtedness Priority Lien Obligations and are transferring the Priority Lien Obligations free and clear of any Liens or encumbrances encumbrances; and (iii) the Working Capital Facility Collateral Agent Priority Lien Representatives and Working Capital Facility Lenders such holders of the Priority Lien Obligations have the right to assign sell the Working Capital Facility Indebtedness Priority Lien Obligations and the assignment sale is duly authorized.
(ef) The Working Capital Facility On the Purchase Date, each Purchaser shall execute an assignment agreement in form and substance reasonably satisfactory to each Priority Lien Representative and each Parity Lien Representative in order to effect the sale of the Priority Lien Obligations to such Purchaser (and Issuer hereby consents to such assignment and sale). After such sale becomes effective, the Priority Lien Obligations will remain outstanding and enforceable and will remain secured by the Priority Liens upon the Collateral Agent agrees in accordance with the applicable provisions of the Priority Lien Documents as in effect at the time of such sale, and the Purchasers thereof will be entitled to the benefit of the Priority Liens upon the Collateral and sharing rights in the proceeds thereof in accordance with the provisions of the Priority Lien Documents and this Agreement as in effect at the time of such sale, as fully as if the sale of the Priority Lien Debt had not been made.
(g) Notwithstanding the foregoing, following the purchase of the entire aggregate amount of the Priority Lien Obligations by the holders of Parity Lien Obligations (or their Affiliates or designees), such holders of Parity Lien Obligations will have no further obligation to fund any commitments in respect of any Priority Lien Obligations so purchased and all outstanding commitments in respect of any Priority Lien Obligations will automatically terminate.
(h) In no event will any holder of Junior Lien Obligations, any Junior Lien Representative, the Issuer or any Grantor or any of their respective Affiliates have the option to purchase any Priority Lien Obligations pursuant to this Section 2.12. Notwithstanding the foregoing, upon receipt of a Purchase Notice, the Issuer may, within 5 Business Days, notify the Collateral Trustee, the Priority Lien Representative and each Parity Lien Representative that it shall give will, within 30 days of the Interim Notes Collateral Agent date of the Purchase Notice, repay all amounts outstanding under any Priority Lien Obligations and terminate all commitments in respect thereof. For the Pari Passu Collateral Agent five (5) Business Days prior written notice duration of its intention to commence the exercise such 30 day period, no holder of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice Parity Lien Obligations will take any action in respect of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action2.12; provided, that if the purchase Issuer does not repay all amounts outstanding under any Priority Lien Obligations and sale terminate all commitments in respect thereof within such 30 day period, the holders of Parity Lien Obligations may, following such 30 day period, take any and all actions described in this Section 2.12.
(i) Neither the Collateral Trustee, any Priority Lien Representative nor any holder of Priority Lien Obligations will take any action with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by Collateral nor exercise any right or remedy available under the Outside Closing Date and Priority Lien Documents (including any action to accelerate the Working Capital Facility Collateral Agent shall have received payment in full Priority Lien Debt) during the period following the receipt of a Purchase Notice until the end of the Working Capital Facility Indebtedness as provided for herein on or before Purchase Option Period, including, without limitation during the Outside Closing Date. Nothing contained 30 day period set forth in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral2.12(h).
Appears in 1 contract
Purchase Option. Licensor grants Licensee an irrevocable option to purchase all Licensor’s right, title, and interest on an “As Is” basis in the assets set forth on Exhibit A, which Licensee may exercise upon all of the following conditions being met:
(ai) Upon the occurrence and during the continuance of an Event of Default or an event of default BPAC must be a fully reporting company under the Working Capital Facility Documents Securities Exchange Act of 1934, as amended (the “’34 Act”), and be current in its reporting obligations under the ’34 Act;
(ii) There must be mutually agreed written employment agreements in place, to be effective upon Licensee closing the purchase of the Assets, hiring ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as President and Chief Executive Officer and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as Chief Marketing Officer of BPAC and Licensee;
(iii) Licensee must be in a position to support the marketing and other operational needs of the Business, and to otherwise meet its financial obligations as they become due and not be delinquent in any outstanding payment obligations;
(iv) The Licensee shall have fully assumed the obligations for the “Product Line Payment” under the contract described on Schedule 3.4 with respect to a sale of the Beaute de Maman business, on a basis mutually acceptable to the Parties and to the seller of the Beaute de Maman business, and without liability or obligation of Licensor; and
(v) There shall be no litigation or inquiry, investigation or proceeding (whether preliminary, formal or informal) by any governmental unit, agency or regulatory body (or SRO), or by any current or former BPAC stockholder or BPAC or Licensee creditor, that is not cured pending or waived within thirty (30) daysovertly threatened against Licensee or BPAC, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholdersincluding without limitation, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lendersno litigation, after written demand by the Trustee inquiry, investigation or the Interim Notes Collateral Agentproceeding with respect to BPAC’s securities issuances and/or ’34 Act filings, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, or seeking to the Company for the accelerated payment of all Interim Notes Obligations delist or Pari Passu Obligations, as applicable, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness remove BPAC from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt OTC Markets (in each case, Pink Sheets). This option will be exclusive and remain open for a period (the “Purchasable PortionOption Period”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later shorter of (i) thirty six (306) days months after the receipt by the Working Capital Facility Collateral Agent of the Exercise Noticeabove five conditions are satisfied, and or (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, remaining Term of the information required to be delivered pursuant to clauses (a) and (b) License. Upon expiration of the definition Option Period, this option will automatically and irrevocably expire and be of “Qualified Indemnification Claim” no further force and effect. If Licensee validly exercises this option, BPAC will issue Licensor 750,000 shares of its Series D Convertible Preferred Stock as consideration for such purchase (the later of such dates“Purchase Shares”). The Purchase Shares, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, License Shares and the Interim Notes Collateral Agent and/or BDM Inventory Shares together constitute the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale“Shares”.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 1 contract
Sources: License and Asset Purchase Option Agreement (Biopack Environmental Solutions Inc.)
Purchase Option. (a) Upon The Senior Indebtedness Representative, on behalf of itself and the occurrence and during the continuance holders of Senior Indebtedness, agrees that if (i) an Event of Default or an event of default under the Working Capital Facility Senior Revolving Credit Documents that has occurred and is not cured continuing, and as a result of such Event of Default under the Senior Revolving Credit Documents (A) the Senior Indebtedness has been accelerated and/or (B) the Majority Lenders are pursuing remedies of foreclosure against the Collateral, (ii) an Insolvency or waived within thirty Liquidation Proceeding is commenced by or against the Borrower or any other Obligor or (30iii) daysa Standstill Period is in effect (any of such events, a “Trigger Event”), the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, Term Claimholders shall have the right and option to purchase the aggregate amount of outstanding Senior Indebtedness (including unfunded commitments) up to, in the case of principal, the Maximum Priority Senior Revolving Amount at a price of not less than par, plus all accrued and unpaid interest and fees, together with cash collateral for all outstanding letters of credit in an amount equal to 105% of the undrawn and available amount consistent with all other Senior Revolving Credit Documents of all letters of credit outstanding under the Senior Revolving Credit Documents, and a payment for all then outstanding Eligible Swap Agreements at a price equal to the sum of any time upon five (5) Business Days’ prior unpaid amounts then due in respect of such Eligible Swap Agreements plus or minus a net amount quoted by the Senior Revolving Claimholder party to such Eligible Swap Agreement that would be paid to assign or novate each such Eligible Swap Agreement in the ordinary course of its business. Such sale shall be without warranty or representation or recourse other than as provided in standard LSTA documentation for par trades. To exercise the option following a Trigger Event, the Term Administrative Agent shall deliver a written notice to the Working Capital Facility Collateral Agent Senior Indebtedness Representative and the Senior Revolving Lenders, which notice shall be deemed an irrevocable offer to elect the Senior Revolving Claimholders to purchase a portion of the Working Capital Facility Senior Indebtedness from on the Working Capital Facility Lenders, ratably terms set forth in proportion to the outstanding Obligations of each outstanding Series of Secured Debt this Section (in each case, the “Purchasable PortionPurchase Notice”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On Upon receipt of a Purchase Notice the date specified by parties shall endeavor to close within twenty (20) days after such acceptance (such entire period referred to as the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which “Purchase Period”). Neither the Senior Indebtedness Representative nor the Senior Revolving Claimholders shall not be less than five (5) Business Dayscommence any Enforcement Action during the Purchase Period; provided, nor more than the later of however, (i) thirty (30) days after if the receipt by the Working Capital Facility Collateral Agent holders of the Exercise NoticeSubordinated Obligations reject such offer or do not timely accept such offer, and or (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agentif, as applicable, upon expiration of the information required to be delivered Purchase Period, the parties have not closed the transaction, then the Senior Indebtedness Representative and the holders of Senior Indebtedness shall have no further obligations pursuant to clauses (a) this Section and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by may commence any Obligor Enforcement Action in their sole discretion in accordance with the terms Senior Revolving Credit Documents and this Agreement; provided that if during the Purchase Period, a Senior Revolving Claimholder determines Exigent Circumstances exist, (A) it may or may direct the Senior Indebtedness Representative to take appropriate Enforcement Actions to preserve the value of the Working Capital Facility Documents as Collateral or the amount which could reasonably be expect to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, be recovered thereon and (B) nothing contained in clause (A) above shall restrict or limit prevent the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to of a Swap Agreement and the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such netting of amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders due in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time)thereof.
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 1 contract
Purchase Option. (a) Upon the occurrence and during the continuance of an Revolving Facility Event of Default or an event and the acceleration of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf any portion of the Interim Notes NoteholdersRevolving Facility Obligations, and any one or more Term Loan Lenders (including any group thereof) holding in the Pari Passu Collateral Agent on behalf aggregate at least a majority in principal amount of the Pari Passu Lenders, after written demand by the Trustee Term Loan Obligations then outstanding (acting in their individual capacity or the Interim Notes Collateral Agent, on the through one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, more affiliates) shall have the option at any time upon five right, but not the obligation, to purchase (5each Term Loan Lender having a ratable right to purchase) Business Days’ prior written notice from Revolving Facility Lender all (but not less than all) of the right, title, and interest of Revolving Facility Lender in and to the Working Capital Revolving Facility Collateral Obligations and the Revolving Facility Documents, in accordance with the procedures set forth in this Section 7.01. For purposes of this Section 7.01, Letters of Credit outstanding under the Revolving Facility Credit Agreement will be deemed to have a principal amount equal to 105% of the maximum potential liability of Revolving Facility Lender in respect thereof under the Revolving Facility Credit Agreement.
(i) Revolving Facility Agent to elect to purchase a agrees that it will notify Term Loan Agent of the occurrence of an Revolving Facility Event of Default and the acceleration of any portion of the Working Capital Revolving Facility Indebtedness from Obligations within three (3) Business Days of the Working Capital date of such acceleration (such notice, a “Revolving Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable PortionAcceleration Notice”). Such notice (an shall prominently include the title “Exercise Revolving Facility Acceleration Notice”.
(ii) from Term Loan Agent agrees that, within three (3) Business Days of receipt by Term Loan Agent of such Revolving Facility Acceleration Notice, it will notify the Interim Notes Collateral Term Loan Lenders of such Revolving Facility Acceleration Notice. Within ten (10) Business Days of the date of the notice by Term Loan Agent of such Revolving Facility Acceleration Notice to any Term Loan Lender (or, if no notice or Pari Passu Collateral Agent, as applicable, to the Working Capital Revolving Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, Acceleration Notice shall have the right been given to such Term Loan Lender, within ten (10) days following Business Days of the date such Term Loan Lender obtains actual knowledge of such Revolving Facility Event of Default and acceleration of any portion of the Revolving Facility Obligations), such Term Loan Lender (or any group of Term Loan Lenders including such Term Loan Lenders) holding in the aggregate at least a majority in principal amount of the Term Loan Obligations then outstanding (acting in its or their individual capacity or through one or more affiliates) may (but shall not be obligated to) send to Term Loan Agent, a written firm offer to purchase (a “Purchase Election”) all (but not less than all) of the right, title, and interest of Revolving Facility Lenders in and to the Revolving Facility Obligations and the Revolving Facility Documents. Promptly upon receipt of any such Purchase Election, Term Loan Agent will notify the information required Revolving Facility Agent of such Purchase Election (a “Purchase Notice”), which Purchase Notice shall specify a date for purchase not less than two (2) and no more than fifteen (15) Business Days from the date of delivery thereof. The Purchase Notice, if given, shall be irrevocable.
(iii) To the extent that the aggregate amount of Revolving Facility Obligations in respect of which Purchase Elections are received exceeds the aggregate amount of Revolving Facility Obligations then outstanding, each Term Loan Lender submitting a Purchase Election in accordance with the foregoing shall be allocated by the Term Loan Agent the right to be delivered pursuant purchase such right, title and interest of Revolving Facility Lenders in and to clauses the Revolving Facility Obligations and the Revolving Facility Documents, (ax) first, with a principal amount of Revolving Facility Obligations then outstanding (based on the aggregate principal amount of Term Loan Obligations then held by such Term Loan Lenders) and (by) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; providedsecond, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration extent any principal amount of such ten-day period. Neither Revolving Facility Obligation remains unallocated, according to the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6foregoing, with a principal amount of Revolving Facility Obligations equal to such Term Loan Lender’s ratable share of such unallocated principal amount of Revolving Facility Obligations in respect of which such Term Loan Lender has submitted such Purchase Election.
(b) On the date specified by in the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Purchase Notice (which shall not be less than five two (52) or more than fifteen (15) Business Days, nor more than the later of (i) thirty (30) days Days after the receipt by the Working Capital Facility Collateral Agent delivery of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Purchase Notice to Revolving Facility Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Revolving Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, purchasing persons or Term Loan Lenders and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent such purchasing persons or Term Loan Lenders shall purchase from the Working Capital Facility Collateral Agent and Working Capital Revolving Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Revolving Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleObligations.
(c) Upon On the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agentpurchasing persons or Term Loan Lenders, as applicable, shall (i) pay to the Working Capital Revolving Facility Collateral Agent, for the benefit of Working Capital Revolving Facility Lenders, as the purchase price therefore, therefor the full amount of the respective Purchasable Portion of all the Working Capital Revolving Facility Indebtedness Obligations (other than Revolving Facility Obligations cash collateralized in accordance with clause (c)(ii) below) then outstanding and unpaid (including principalunpaid, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Revolving Facility Collateral Agent in such amounts as the Working Capital Revolving Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Revolving Facility Collateral Agent and Working Capital Revolving Facility Lenders in connection with (A) any issued and outstanding letters Letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor Credit (but not in any event in an amount greater than 110105% of the aggregate undrawn face amount of such letters Letters of creditCredit) and (B) Bank Product Obligations (but not in any event in an amount greater than the Reserves for the Bank Product), and (iii) agree to reimburse the Working Capital Revolving Facility Collateral Agent and Working Capital Revolving Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or all expenses to the extent caused by reimbursement thereof is earned or resulting from due and payable, in each case, in accordance with the gross negligence or willful misconduct of the Working Capital Revolving Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and Documents (D) excluding any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligationsprepayment premium). Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Revolving Facility Collateral Agent in New York, New York, as the Working Capital Revolving Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Term Loan Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Term Loan Lenders to the bank account designated by the Working Capital Revolving Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (2:00 p.m., New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, purchasing Term Loan Lenders to the bank account designated by the Working Capital Revolving Facility Collateral Agent are received in such bank account later than 1:00 p.m. (2:00 p.m., New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Revolving Facility Collateral Agent and Working Capital Revolving Facility Lenders as to the Working Capital Revolving Facility Indebtedness Obligations so purchased or otherwise and without recourse to the Working Capital Revolving Facility Collateral Agent or Working Capital any Revolving Facility LendersLender, except that the Working Capital each Revolving Facility Collateral Agent and Working Capital Facility Lenders Lender shall represent and warrant: (i) that the amount quoted by such Revolving Facility Lender as its portion of the Working Capital Facility Indebtedness being purchasedpurchase price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (ii) that it owns, or has the Working Capital Facility Collateral Agent right to transfer to such purchasing persons or Term Loan Lenders, as applicable, the rights being transferred, and Working Capital Facility Lenders own the Working Capital Facility Indebtedness (iii) such transfer will be free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedLiens.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during any one or more of Term Loan Lenders or such five Business Day periodother persons designate by Term Loan Agent, exercises and consummates the purchase option set forth in this Section 7.01, (i) Revolving Facility Agent shall have the right, but not the obligation, to immediately resign under the Revolving Facility Credit Agreement, and (ii) such purchasing persons or Term Loan Lenders, as applicable, shall have the right, but not the obligation, to require Revolving Facility Agent to immediately resign under the Revolving Facility Credit Agreement.
(f) Commencing on the date immediately following the Revolving Facility Agent’s receipt of any Purchase Notice, the Interim Notes Collateral Revolving Facility Agent and the Pari Passu Collateral Agent shall send to the Working Capital Revolving Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent Lenders shall not commence complete or take any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; providedEnforcement Action, that as long as the purchase and sale with respect to of the Working Capital Revolving Facility Indebtedness Obligations provided for herein in this Section 7.01 shall have closed by within fifteen (15) Business Days of the Outside Closing Date Revolving Facility Agent’s receipt of the Purchase Notice and the Working Capital Revolving Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e7.01 within such fifteen (15) shall restrict or prohibit Business Day period unless the Working Capital Revolving Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgmentreasonable discretion, deems such action shall determine that the failure to be necessary take any Enforcement Action or the delay in taking any Enforcement Action with respect to preserve or protect the Shared CollateralRevolving Facility First Lien Collateral would materially and adversely prejudice the Revolving Facility Lenders.
Appears in 1 contract
Sources: Lien Subordination and Intercreditor Agreement (Five Below, Inc)
Purchase Option. (a) Upon Without prejudice to the enforcement of the remedies of the Senior Agents and the other Senior Claimholders, at any time during the fifteen (15) Business Day period following the occurrence and during the continuance of an Event of Default a Triggering Event, then, in any such case, any one or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf more of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee Subordinated Claimholders (acting in their individual capacity or the Interim Notes Collateral Agent, on the through one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, more affiliates) shall have the option right, but not the obligation (each Subordinated Claimholder having a ratable right to make the purchase, with each Subordinated Claimholder’s right to purchase being automatically proportionately increased by the amount not purchased by another Subordinated Claimholder), upon advance written notice from such Subordinated Claimholders (a “Purchase Notice”) to the Senior Agents (which notice may be given at any time upon five (5) Business Days’ prior written notice to during the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days Business Days following receipt the occurrence of the information required Triggering Event), for the benefit of the Senior Claimholders, to be delivered pursuant to clauses acquire from the Senior Claimholders all (a) and (bbut not less than all) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion right, title, and interest of the Working Capital Facility Indebtedness; provided, further, that such revocation is Senior Claimholders in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day periodSenior Obligations and the Senior Loan Documents. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder The Purchase Notice, if given, shall have any rights under this Section 5.6be irrevocable.
(b) On the date specified by in the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Purchase Notice (which shall not be less later than five (5x) ten (10) Business Days, nor more than the later of (i) thirty (30) days Days after the receipt by the Working Capital Facility Collateral Agent Senior Agents of the Purchase Notice or (y) fifteen (15) Business Days after occurrence of the Triggering Event), the Senior Claimholders shall sell to the purchasing Subordinated Claimholders and purchasing Subordinated Claimholders shall purchase from the Senior Claimholders, the Senior Obligations. During the seven (7) Business Day period following occurrence of the Triggering Event, the Senior Agent and the other Senior Claimholders shall not, absent the existence of Exigent Circumstances, Exercise Notice, and any Secured Creditor Remedies until the end of such seven (ii7) Business Day period. In the event that the Subordinated Agent delivers the Purchase Notice to the Senior Agents within the ten (10) days Business Day period following the occurrence of the Triggering Event, the Senior Agent and the other Senior Claimholders shall not, absent the existence of Exigent Circumstances, Exercise any Secured Creditor Remedies (to the extent such action has not been taken) until the earlier of (x) the tenth (10th) Business Day after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, Senior Agents of the information required to be delivered pursuant to clauses Purchase Notice or (ay) and the fifteenth (b15th) Business Day after occurrence of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleTriggering Event.
(c) Upon On the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Subordinated Claimholders shall (i) pay to the Working Capital Facility Collateral each Senior Agent, for the benefit of Working Capital Facility Lendersthe applicable Senior Claimholders, as the purchase price therefore, therefor the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness Senior Obligations (other than Senior Obligations cash collateralized in accordance with clause (c)(ii) below) then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document)unpaid, (ii) furnish cash collateral (A) Letter of Credit Collateralization to the Working Capital Facility Collateral Senior Revolving Loan Agent in such amounts as the Working Capital Facility Collateral Senior Revolving Loan Agent determines is reasonably necessary (but not in excess of 105% of the face amount thereof) to secure the Senior Revolving Loan Agent and the applicable Senior Claimholders in connection with any issued and outstanding Letters of Credit, and (B) Bank Product Collateralization to the Senior Revolving Loan Agent in such amounts as the Senior Revolving Loan Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Senior Revolving Loan Agent and Working Capital Facility Lenders the applicable Senior Claimholders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit)Bank Product Obligations, (iii) agree to reimburse the Working Capital Facility Collateral Agent Senior Agents and Working Capital Facility Lenders the Senior Claimholders for any checks or other payments provisionally credited all expenses to the Working Capital Facility Indebtednessextent earned or due and payable in accordance with the Senior Loan Documents (including the reimbursement of extraordinary expenses, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment financial examination expenses, and appraisal fees), and (iv) agree if the purchasing Subordinated Claimholders include the Sponsor or any of its Affiliates, pay a supplemental purchase price to reimburse each Senior Agent, for the Working Capital Facility Collateral Agent and Working Capital Facility Lenders benefit of the Senior Claimholders, in respect of Qualified Indemnification Claims their purchase under this Section 9 in an amount equal to the portion of the prepayment premium, make-whole obligation or early termination fee to which the Senior Agents and the other Senior Claimholders would have been entitled to receive had the Senior Obligations been paid in fact result full on the date of such purchase and sale. Anything contained in this paragraph to the contrary notwithstanding, in the event that (W) purchasing Subordinated Claimholders do not include the Sponsor or any lossof its Affiliates, cost(X) purchasing Subordinated Claimholders receive all or a portion of any prepayment premium, damage make-whole obligation or expense early termination fee payable pursuant to the Senior Loan Documents in cash, (Y) all Senior Obligations purchased by such purchasing Subordinated Claimholders and all of the Subordinated Obligations, including principal, interest and fees thereon and costs and expenses of collection thereof (including reasonable attorneys’ attorneys fees and legal expenses), are repaid in full in cash, and (Z) each Senior Credit Agreement is terminated, in each case, within 90 days following the date on which the purchasing Subordinated Claimholders pay the purchase price described in clauses (i)-(iii) of this paragraph, then, within three (3) Business Days after receipt by such Subordinated Claimholders of such amounts, purchasing Subordinated Claimholders shall pay a supplemental purchase price to each applicable Senior Agent, for the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess benefit of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agentapplicable Senior Claimholders, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over their purchase under this Section 9 in an amount equal to the Working Capital Facility Collateral Agent portion of the prepayment premium, make-whole obligation or early termination fee received by purchasing Subordinated Claimholders to which the Working Capital Facility Lenders Senior Claimholders would have been entitled to receive had the purchase under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligationsparagraph not occurred. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral applicable Senior Agent in New York, New York, as the Working Capital Facility Collateral such Senior Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Subordinated Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Subordinated Claimholders to the bank account designated by the Working Capital Facility Collateral applicable Senior Agent are received in such bank account prior to 1:00 p.m. (2:00 p.m., New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, purchasing Subordinated Claimholders to the bank account designated by the Working Capital Facility Collateral applicable Senior Agent are received in such bank account later than 1:00 p.m. (2:00 p.m., New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent Senior Agents and Working Capital Facility Lenders the Senior Claimholders as to the Working Capital Facility Indebtedness Senior Obligations so purchased or otherwise and without recourse to the Working Capital Facility Collateral any Senior Agent or Working Capital Facility Lendersany Senior Claimholder, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders each Senior Claimholder shall represent and warrant: (i) that the amount quoted by such Senior Claimholder as its portion of the Working Capital Facility Indebtedness being purchasedpurchase price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (ii) that it owns, or has the Working Capital Facility Collateral Agent right to transfer to purchasing Subordinated Claimholders, the rights being transferred, and Working Capital Facility Lenders own the Working Capital Facility Indebtedness (iii) such transfer will be free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedLiens.
(e) The Working Capital Facility Collateral Agent agrees that it shall give If the Interim Notes Collateral Agent Subordinated Claimholders fail to exercise their purchase right under this Section 9 within the ten (10) day period described above in Section 9(a), or fail to close the purchase within the required time period ,described above in Section 9(a), the Senior Agents and the Pari Passu Collateral Agent five Senior Claimholders shall have no further obligations to the Subordinated Claimholders under this Section 9.
(5f) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent any one or more of Subordinated Claimholders exercises and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise consummates the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under set forth in this Section 5.69, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral (i) each Senior Agent shall have received payment in full of the Working Capital Facility Indebtedness right, but not the obligation, to immediately resign its role as provided for herein on or before such under the Outside Closing Date. Nothing contained in this Section 5.6(eapplicable Senior Credit Agreement, and (ii) purchasing Subordinated Claimholders shall restrict or prohibit have the Working Capital Facility Collateral right, but not the obligation, to require each Senior Agent from taking action to immediately resign under the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateralapplicable Senior Credit Agreement.
Appears in 1 contract
Sources: Senior Term Loan Credit Agreement (Bumble Bee Capital Corp.)
Purchase Option. (ai) Upon Without prejudice to the occurrence enforcement of the remedies of the Senior Agent and during the continuance Senior Lenders, at any time within the twenty (20) calendar day period following the commencement of an Event any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) daysBorrower, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, Subordinated Creditor shall have the option at any time upon right, but not the obligation, to purchase all (but not less than all) of the Senior Agent’s and the Senior Lenders’ right, title and interest in and to the Senior Obligations (the “Senior Interest”, and such right, the “Purchase Option”); provided, that the Purchase Option shall expire if the Subordinated Creditor fails to deliver written notice (the “Purchase Notice”) to the Senior Agent of the Subordinated Creditor’s exercise of the Purchase Option within such twenty (20) calendar day period. The Purchase Notice, if given, shall be irrevocable. Upon receipt of the Purchase Notice by the Senior Agent, the Subordinated Creditor shall have from the date of such receipt to and including the date that is five (5) Business Days’ prior written notice to Days after the Working Capital Facility Collateral Agent to elect date of such receipt to purchase a portion the Senior Interest in accordance herewith (the date of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each casesuch purchase, the “Purchasable PortionPurchase Date”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(bii) On the date Purchase Date, the Senior Agent and the Senior Lenders shall, subject to any required approval of any Governmental Authority, sell to the Subordinated Creditor the Senior Interest, and the Subordinated Creditor shall (A) pay to the Senior Agent as the purchase price therefor, for the benefit of the Senior Lenders, as directed by the Senior Agent, in immediately available funds, the full amount of all Senior Obligations then outstanding, including all accrued and unpaid interest and fees thereon, all in the amounts specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Senior Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor determined in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security thereforSenior Credit Documents, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Senior Agent and Working Capital Facility the Senior Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expensesx) resulting from the granting of provisional credit for any checks, wire or ACH transfers that are reversed or not final or other payments provisionally credited to the Working Capital Facility Collateral Senior Obligations under the Senior Credit Documents and as to which the Senior Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, Senior Lenders have any liability for such amounts in excess not yet received final payment as of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral AgentPurchase Date, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2y) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims obligations (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability on account of indemnification obligations for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct unknown claims as of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility ObligationsPurchase Date). Such purchase price and cash collateral shall be remitted by wire transfer in federal immediately available funds to such bank account of the Working Capital Facility Collateral Senior Agent in New York, New York, (for the benefit of the Senior Lenders) as the Working Capital Facility Collateral Senior Agent may designate shall have specified in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedSubordinated Creditor. Interest and fees shall be calculated to but excluding the Business Day on which such purchase and sale shall occur Purchase Date if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Subordinated Creditor to the bank account designated by the Working Capital Facility Collateral Senior Agent are received in such bank account prior to 1:00 p.m. (11:00 a.m., New York City time) , and interest shall be calculated to and including such Business Day the Purchase Date if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Subordinated Creditor to the bank account designated by the Working Capital Facility Collateral Senior Agent are received in such bank account later than 1:00 p.m. (after 11:00 a.m., New York City time).
(diii) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Senior Agent and Working Capital Facility or the Senior Lenders as to the Working Capital Facility Indebtedness Senior Interest so purchased or otherwise and without recourse to the Working Capital Facility Collateral Senior Agent or Working Capital Facility the Senior Lenders, except that the Working Capital Facility Collateral Senior Agent and Working Capital Facility Lenders each Senior Lender shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (iiA) that the Working Capital Facility Collateral Agent amount quoted by such party as its portion of the purchase price represents the amount shown as owing in respect of the claims transferred as reflected on its books and Working Capital Facility Lenders own records, (B) that such party owns, or has the Working Capital Facility Indebtedness right to transfer to the Subordinated Creditor, such party’s respective portion of the Senior Interest being transferred, and (C) that such transfer will be free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedliens of such party.
(eiv) The Working Capital Facility Collateral Upon the consummation of the purchase of the Senior Interest in accordance herewith, the Senior Agent agrees that it shall give the Interim Notes Collateral Agent be deemed to have resigned as an “agent”, “administrative agent”, and “collateral agent” for itself and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence other secured parties under the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further actionSenior Credit Documents; provided, that the Senior Agent shall be entitled to all of the rights and benefits of a former “agent”, “administrative agent” or “collateral agent” under the Senior Credit Documents. Notwithstanding the purchase and sale with respect to of the Working Capital Facility Indebtedness provided for herein shall have closed Senior Interest by the Outside Closing Date Subordinated Creditor, the Senior Agent and the Working Capital Facility Collateral Agent other secured parties under the Senior Credit Documents shall have received payment in full retain those contingent indemnification obligations and other obligations owing or to be owing to them under the Senior Credit Documents, which by their express terms would survive any repayment of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralSenior Obligations.
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Sources: Senior Subordinated Promissory Note (Numerex Corp /Pa/)
Purchase Option. (ai) Upon If the occurrence and during Agent shall notify the continuance FILO Agent of an Event of Default its intention to (by itself or an event of default under at the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf direction of the Interim Notes NoteholdersRequired Lenders) sell, and the Pari Passu Collateral Agent on behalf lease or otherwise dispose of all or substantially all of the Pari Passu Lenders, after written demand Collateral whether by private or public sale in accordance with Section 8.02(b); provided that any notice from the Agent to the FILO Agent of the Agent’s intention to conduct such a sale shall be delivered by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, Agent to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral FILO Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business DaysDays prior to the commencement of any such sale (the foregoing event is referred to herein as a, nor more “Purchase Option Event”), the FILO Lenders shall have the opportunity to purchase all (but not less than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (ball) of the definition of Obligations (other than the FILO Obligations); provided that such option shall expire if the applicable FILO Lenders fail to deliver a written notice (a “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing DateRevolving Purchase Notice”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell ) to the Interim Notes Collateral Agent and/or within five (5) Business Days following the Pari Passu Collateral Agentfirst date the FILO Agent obtains knowledge of the occurrence of a Purchase Option Event, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent which Revolving Purchase Notice shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) be signed by the Working Capital Facility Collateral Agent applicable FILO Lenders committing to such purchase (the “Revolving Purchasing Creditors”) and Working Capital Facility Lenders shall retain all rights indicate the percentage of the Obligations (other than the FILO Obligations) to be indemnified or held harmless purchased by any Obligor in accordance with the terms each Revolving Purchasing Creditor (which aggregate commitments must add up to one hundred percent (100%) of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to Obligations (other than the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, FILO Obligations)) and (B) nothing confirm that the offer contained in clause (A) above shall restrict or limit therein is irrevocable. Upon receipt of such Revolving Purchase Notice by the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, Revolving Purchasing Creditors shall have from the Pari Passu Collateral date of delivery thereof to and including the date that is five (5) Business Days after the Revolving Purchase Notice was received by the Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result purchase all (but not less than all) of the purchase of Obligations (other than the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
FILO Obligations) (c) Upon the date of such purchase and salepurchase, the Interim Notes Collateral “Revolving Purchase Date”).
(ii) On the Revolving Purchase Date, the Agent and/or and the Pari Passu Collateral Agentother Revolving Secured Parties shall, as applicablesubject to any required approval of any Governmental Authority, if any, sell to the Revolving Purchasing Creditors all (but not less than all) of the Obligations (other than the FILO Obligations). On such Revolving Purchase Date, the Revolving Purchasing Creditors shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility the Credit Parties (other than the FILO Agent and FILO Lenders), as directed by the purchase price thereforeAgent, in immediately available funds the full amount of the respective Purchasable Portion (at par) of all Obligations (other than the Working Capital Facility Indebtedness then outstanding FILO Obligations) together with all accrued and unpaid (including principalinterest and fees thereon, interest, fees all in the amounts specified by the Agent and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee determined in good faith in accordance with the Loan Documents or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document)applicable documents, (ii) furnish such amount of cash collateral to the Working Capital Facility Collateral Agent in such amounts immediately available funds as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Credit Parties (other than the FILO Agent and Working Capital Facility Lenders FILO Lenders) on terms reasonably satisfactory to the Agent in connection with any issued (x) asserted indemnification claims, and outstanding letters (y) all Obligations (other than the FILO Obligations) in respect of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters relating to Letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (Credit but not in any event in an amount greater than 110105% of the aggregate undrawn face amount of such letters of credit)thereof, and (iii) agree to reimburse the Working Capital Facility Collateral Credit Parties (other than the FILO Agent and Working Capital Facility Lenders FILO Lenders) for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) resulting from the granting of provisional credit for any checks, wire or ACH transfers that are reversed or not final or other payments provisionally credited to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims Obligations (other than the Qualified Indemnification Claims), FILO Obligations) and as to which the Agent and the other Credit Parties (Cother than the FILO Agent and FILO Lenders) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct not yet received final payment as of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility ObligationsRevolving Purchase Date. Such purchase price and cash collateral shall be remitted by wire transfer in federal immediately available funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, (for the benefit of the applicable Credit Parties) as the Working Capital Facility Collateral Agent may designate shall have specified in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedFILO Agent. Interest and fees shall be calculated to but excluding the Business Day on which such purchase and sale shall occur Revolving Purchase Date if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, applicable Revolving Purchasing Creditors to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) 11:00 a.m. and interest shall be calculated to and including such Business Day Revolving Purchase Date if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Revolving Purchasing Creditors to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later after 11:00 a.m. Notwithstanding anything to the contrary contained in the Loan Documents, the Loan Parties hereby consent to and approve the assignment of the Obligations (other than 1:00 p.m. (New York City time)the FILO Obligations) contemplated by this Section.
(diii) Such Any purchase shall pursuant to the purchase option described in this Section shall, except as provided below, be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent or the other Credit Parties (other than the FILO Agent and Working Capital Facility Lenders FILO Lenders) as to the Working Capital Facility Indebtedness Obligations, the Collateral or otherwise otherwise, and without recourse to the Working Capital Facility Agent and the other Credit Parties (other than the FILO Agent and FILO Lenders) as to the Obligations, the Collateral Agent or Working Capital Facility Lendersotherwise, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders each of the other Credit Parties (other than the FILO Agent and FILO Lenders), as to itself only, shall represent and warrant: warrant only as to (i) the principal amount of the Working Capital Facility Indebtedness Obligations being purchasedsold by it, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of such Person has not created any Liens Lien on, or encumbrances sold any participation in, any Obligations being sold by it, and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have that such Person has the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedObligations being assigned by it.
(eiv) The Working Capital Facility In connection with any purchase of Obligations (other than the FILO Obligations) pursuant to this Section, each Credit Party (other than the FILO Agent and FILO Lenders) agrees to enter into and deliver to the Revolving Purchasing Creditors on the Revolving Purchase Date, as a condition to closing, an assignment agreement substantially in the form of Exhibit A to this Agreement or any other form approved by the Agent and, at the expense of the Loan Parties, each of the Credit Parties (other than the FILO Agent and FILO Lenders) shall deliver all possessory Collateral (if any), together with any necessary endorsements and other documents (including any applicable stock powers or note powers), then in such Credit Party’s possession or in the possession of its agent or bailee, or turn over control as to any pledged Collateral, deposit accounts or securities accounts of which such Credit Party or its agent or bailee then has control, as the case may be, to the FILO Agent agrees that it shall give to act as the Interim Notes successor Administrative Agent and Collateral Agent and otherwise take such actions as may be reasonably appropriate to effect an orderly transition to the Pari Passu FILO Agent to act as the successor Administrative Agent and Collateral Agent five Agent. Upon the consummation of the purchase of the Obligations (5other than the FILO Obligations) Business Days prior written notice of its intention pursuant to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day periodthis Section, the Interim Notes Collateral Administrative Agent and the Pari Passu Collateral Agent shall send be deemed to have resigned as an “agent” or “administrative agent” or “collateral agent” (or any similar role) for the Working Capital Facility Credit Parties, under the Loan Documents; provided the Administrative Agent and Collateral Agent the irrevocable notice (and all other agents under this Agreement) shall be entitled to all of the Interim Notes Collateral Agent’s rights and benefits of a former “agent” or “administrative agent” or “collateral agent” under this Agreement.
(v) Notwithstanding the Pari Passu Collateral Agent’s intention to exercise foregoing purchase of the purchase option given Obligations (other than the FILO Obligations) by the Working Capital Facility Collateral Agent to Revolving Purchasing Creditors, the Interim Notes Collateral Credit Parties (other than the FILO Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent FILO Lenders) shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full retain those contingent indemnification obligations of the Working Capital Facility Indebtedness as provided for herein on or before Loan Parties and other obligations under the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit Loan Documents which by their terms would survive any repayment of the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralObligations.
Appears in 1 contract
Purchase Option. So long as the Credit Agreement is in effect, the Seller shall have the right to repurchase in full (abut not in part) Upon the occurrence Purchased Interest from the Issuer and during the continuance of an Event of Default or an event of default under Purchasers, if any, on any Settlement Date on the Working Capital Facility Documents that is not cured or waived within thirty terms hereinafter set forth in this Section 5.14 (30such date, the “Repurchase Date”). The Seller shall give the Administrator at least sixty (60) days’ prior written notice of such repurchase. The Repurchase Date shall occur not later than the Settlement Date immediately after the sixty-day period following Seller’s written notice of such repurchase to the Administrator. Upon payment of the full Repurchase Price for the Purchased Interest on the Repurchase Date, as herein provided, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, Issuer and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu ObligationsPurchasers, as applicable, shall be deemed to have reconveyed the option at any time upon five (5) Business Days’ prior written notice Purchased Interest to the Working Capital Facility Collateral Agent to elect to purchase a portion of Seller without recourse, representation or warranty. The Seller shall pay such repurchase price (the Working Capital Facility Indebtedness from “Repurchase Price”) for the Working Capital Facility Lenders, ratably Purchased Interest on the Repurchase Date in proportion immediately available funds to the outstanding Obligations of each outstanding Series of Secured Debt (Administrator in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, amount equal to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later sum of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent aggregate of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, Discount accrued for each Portion of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as Issuer and each Purchaser accrued to and including the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document)Repurchase Date, (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as for the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent Issuer and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit)each Purchaser, (iii) agree all amounts payable pursuant to reimburse Sections 1.5, 1.7, 1.8 or 5.4 or Article III accrued to and including the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility IndebtednessRepurchase Date, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on all other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such lossesfees, costs, damages or expenses and other obligations of the Seller and the Servicer pursuant to the extent caused by or resulting from the gross negligence or willful misconduct Transaction Documents that are payable as of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdictionRepurchase Date, and (Dv) any amounts reimbursed by if UGI is not the Interim Notes Collateral Agent or Servicer, the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account Issuer’s Share of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing Servicing Fee allocated to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Purchased Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated that has accrued to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time)Repurchase Date.
(diii) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as Exhibit I to the Working Capital Facility Indebtedness or otherwise and without recourse to Agreement is hereby amended by adding the Working Capital Facility Collateral Agent or Working Capital Facility Lendersfollowing terms, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.alphabetically appropriate:
Appears in 1 contract
Purchase Option. (a) Upon If the occurrence and during the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) daysClass A-1 Notes, the Interim Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes Collateral Agent on behalf of the Interim Notes Noteholdersare no longer Outstanding, and the Pari Passu Collateral Agent on behalf of the Pari Passu LendersNelnet, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the Inc. is hereby granted an option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a Pro rata Portion of Financed Eligible Loans held in the Trust Estate at a purchase price equal to the greater of the Pro rata Minimum Purchase Amount and the fair market value of such Financed Eligible Loans as of the Quarterly Distribution Date immediately preceding the date of sale for the purpose of redeeming all or any portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt a Class of the information required to be delivered Auction Rate Notes on any Auction Rate Adjustment Date for such Class of the Auction Rate Notes pursuant to clauses (a) and (bSection 2.09(d) of the definition of “Qualified Indemnification Claim” Indenture. The Pro rata Minimum Purchase Amount means, with respect to revoke such election to purchase such portion the Auction Rate Notes, that amount, together with an allocable amount on deposit in any Account of the Working Capital Facility Indebtedness; providedNote Payment Fund corresponding to such Class of the Auction Rate Notes and a Pro rata Portion of the amounts on deposit in the Capitalized Interest Fund and the Reserve Fund (if such amounts can be released from the Reserve Fund), further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days each after the receipt by distribution of amounts on deposit in the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, Collection Fund on the one handmost recent Distribution Date, which is equal to or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds amount necessary to redeem the Auction Rate Notes proposed to be redeemed pursuant to the redemption provisions of Shared Collateral received by Section 2.09(d) of the Interim Notes Collateral Agent or the Pari Passu Collateral AgentIndenture, as applicable, net of (1) the reasonable costs of collection to pay all amounts due (including reasonable attorneys’ fees any Issuer Derivative Payments and legal expensesapplicable Termination Payments) incurred by or on behalf any Derivative Product corresponding to such Class of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral Auction Rate Notes and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect pay a Pro rata Portion of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any Program Expenses to such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct redemption date. Any portfolio of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent Financed Eligible Loans sold pursuant to this clause Section shall have representative characteristics substantially equivalent to the portfolio of all Financed Eligible Loans including, without limitation, such characteristics as average borrower indebtedness, mix of type of loans (c)(iv) shall constitute Working Capital Facility ObligationsStafford, PLUS, consolidation, subsidized, unsubsidized), delinquency ▇▇▇ ▇▇▇ault rate, loans in claim status, maturity, type of educational institution for which the loan funded costs of attendance (four year, two year, proprietary and nonproprietary), identity of Guaranty Agency, and other similar characteristics which may impact upon the value of such Financed Eligible Loans. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account The holder of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing Purchase Option shall exercise such option by delivering a written notice stating its desire to exercise this option to the Interim Notes Collateral Agent Securities Depository, the Indenture Trustee, the Auction Agent, the Broker-Dealers and Pari Passu Collateral Agent for such purpose not less than three (3) the Rating Agencies at least fifteen Business Days prior to the date on which Auction Rate Distribution Date for such amounts are Class of the Auction Rate Notes that it intends to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase exercise its Purchase Option and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, delivering to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Indenture Trustee an amount equal to the bank account designated by the Working Capital Facility Collateral Agent are received in purchase price of such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein Financed Eligible Loans on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action tenth Business Day prior to the extent that Auction Rate Distribution Date for such Class of the Working Capital Facility Collateral AgentAuction Rate Notes. If the holder of the Purchase Option fails to provide the required purchase price, in its good faith judgment, deems no Auction Rate Notes of such action Class shall be called for redemption pursuant to be necessary to preserve or protect the Shared Collateral.Section 2.09(d)
Appears in 1 contract
Sources: Indenture of Trust (Nelnet Education Loan Funding Inc)
Purchase Option. (a) Upon Within 60 days of the occurrence occurrence, and during the continuance continuation of, a Triggering Event, then, in any such case, any one or more of an Event of Default Second Lien Claimholders (acting in their individual capacity or an event of default under the Working Capital Facility Documents that is not cured through one or waived within thirty (30more affiliates) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time right, but not the obligation (each Second Lien Claimholder having a ratable right to make the purchase, with each Second Lien Claimholder’s right to purchase being automatically proportionately increased by the amount not purchased by another Second Lien Claimholder), upon five (5) 5 Business Days’ prior Days advance written notice to the Working Capital Facility Collateral Agent to elect to purchase from such Second Lien Claimholders (a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Purchase Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral to First Lien Agent, as applicablefor the benefit of First Lien Claimholders, to acquire from First Lien Claimholders all (but not less than all) of the Working Capital Facility Collateral Agent right, title, and interest of First Lien Claimholders in and to the First Lien Priority Obligations and the First Lien Loan Documents. The Purchase Notice, if given, shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by in the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Purchase Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days 5 Business Days after the receipt by the Working Capital Facility Collateral First Lien Agent of the Exercise Purchase Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders First Lien Claimholders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, purchasing Second Lien Claimholders and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent purchasing Second Lien Claimholders shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility LendersFirst Lien Claimholders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleFirst Lien Priority Obligations.
(c) Upon On the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Second Lien Claimholders shall (i) pay to the Working Capital Facility Collateral First Lien Agent, for the benefit of Working Capital Facility LendersFirst Lien Claimholders, as the purchase price therefore, therefor the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness First Lien Obligations (other than the Excess First Lien Obligations and other than First Lien Obligations cash collateralized in accordance with clause (c)(ii) below) then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document)unpaid, (ii) furnish cash collateral to the Working Capital Facility Collateral First Lien Agent in such amounts as the Working Capital Facility Collateral First Lien Agent determines is reasonably necessary to secure the Working Capital Facility Collateral First Lien Agent and Working Capital Facility Lenders First Lien Claimholders in connection with (A) any issued and outstanding letters Letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor Credit (but not in any event in an amount greater than 110105% of the aggregate undrawn face amount of such letters Letters of creditCredit) and (B) Bank Product Obligations (but not in any event in an amount greater than the Bank Product Reserve), and (iii) agree to reimburse the Working Capital Facility Collateral First Lien Agent and Working Capital Facility Lenders First Lien Claimholders for any checks or other payments provisionally credited all expenses to the Working Capital Facility Indebtednessextent earned or due and payable in accordance with the First Lien Loan Documents (including the reimbursement of extraordinary expenses, and/or as financial examination expenses, and appraisal fees). Anything contained in this paragraph to which the Working Capital Facility Collateral Agent contrary notwithstanding, in the event that (X) purchasing Second Lien Claimholders receive all or Working Capital Facility Lenders has not yet received final payment a portion of any prepayment premium, make-whole obligation or early termination fee payable pursuant to the First Lien Loan Documents in cash, (Y) all First Lien Obligations purchased by such purchasing Second Lien Claimholders and (iv) agree to reimburse all of the Working Capital Facility Collateral Agent Second Lien Obligations, including principal, interest and Working Capital Facility Lenders in respect fees thereon and costs and expenses of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense collection thereof (including reasonable attorneys’ attorneys fees and legal expenses), are repaid in full in cash, and (Z) the First Lien Credit Agreement is terminated, in each case, within [ ] days following the date on which the purchasing Second Lien Claimholders pay the purchase price described in clauses (i)-(iii) of this paragraph, then, within 3 Business Days after receipt by such Second Lien Claimholders of such amounts, purchasing Second Lien Claimholders shall pay a supplemental purchase price to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral First Lien Agent, as applicablefor the benefit of First Lien Claimholders, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over their purchase under this Section 5.6 in an amount equal to the Working Capital Facility Collateral Agent portion of the prepayment premium, make-whole obligation or early termination fee received by purchasing Second Lien Claimholders to which First Lien Claimholders would have been entitled to receive had the Working Capital Facility Lenders purchase under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligationsparagraph not occurred. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral First Lien Agent in New York, New York, as the Working Capital Facility Collateral First Lien Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent Second Lien Trustee for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Second Lien Claimholders to the bank account designated by the Working Capital Facility Collateral First Lien Agent are received in such bank account prior to 1:00 p.m. (2:00 p.m., New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, purchasing Second Lien Claimholders to the bank account designated by the Working Capital Facility Collateral First Lien Agent are received in such bank account later than 1:00 p.m. (2:00 p.m., New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral First Lien Agent and Working Capital Facility Lenders First Lien Claimholders as to the Working Capital Facility Indebtedness First Lien Obligations so purchased or otherwise and without recourse to the Working Capital Facility Collateral First Lien Agent or Working Capital Facility Lendersany First Lien Claimholder, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders each First Lien Claimholder shall represent and warrant: (i) that the amount quoted by such First Lien Claimholder as its portion of the Working Capital Facility Indebtedness being purchasedpurchase price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (ii) that it owns, or has the Working Capital Facility Collateral Agent right to transfer to purchasing Second Lien Claimholders, the rights being transferred, and Working Capital Facility Lenders own the Working Capital Facility Indebtedness (iii) such transfer will be free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedLiens.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent any one or more of Second Lien Claimholders exercises and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise consummates the purchase option given by set forth in this Section 5.6, (i) First Lien Agent shall have the Working Capital Facility Collateral right, but not the obligation, to immediately resign under the First Lien Credit Agreement, and (ii) purchasing Second Lien Claimholders shall have the right, but not the obligation, to require First Lien Agent to immediately resign under the Interim Notes Collateral Agent and Pari Passu Collateral Agent under First Lien Credit Agreement. In this Section 5.6, the Working Capital Facility terms “Second Lien Claimholders” shall refer exclusively to Holders under the Indenture, and shall exclude the Second Lien Trustee and the Second Lien Collateral Agent. In no event shall the Second Lien Trustee or Second Lien Collateral Agent shall not commence have any foreclosure or other action to sell or otherwise realize upon responsibility for the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing obligations contained in this Section 5.6(e) 5.6 (except as explicitly agreed to by the Second Lien Trustee), and in no event shall restrict either the Second Lien Trustee or prohibit the Working Capital Facility Second Lien Collateral Agent from taking action to be responsible for the extent that execution or funding of the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve Purchase Option or protect the Shared Collateralexpenses connected therewith.
Appears in 1 contract
Purchase Option. SaRonix hereby grants to Pericom the option (athe “Option”) Upon to, subject to the occurrence terms and during conditions set forth herein, purchase, except for the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty Excluded Assets (30) daysas defined below), the Interim Notes Collateral Agent on behalf all of the Interim Notes Noteholdersassets, properties, rights, goodwill and claims used in, relating to or arising from the Pari Passu Collateral Agent on behalf conduct of the Pari Passu LendersBusiness, after written demand by including without limitation the Trustee or assets of SaRonix listed on Schedule 2 attached hereto, from SaRonix (the Interim Notes Collateral Agent“Purchased Assets”), on the one handas follows:
2.1. Pericom may, and/or the Pari Passu Collateral Agentat any time, on the other handelect, in its sole and absolute discretion, to exercise the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option Option at any time upon five prior to October 15, 2003 (5) Business Days’ prior the “Option Expiration Date”), by delivering written notice of such exercise to SaRonix in the Working Capital Facility Collateral Agent to elect to purchase a portion form of Exhibit A attached hereto (the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from ). The date on which Pericom delivers the Interim Notes Collateral Agent or Pari Passu Collateral AgentExercise Notice as set forth above is referred to hereinafter as the “Exercise Date.” Upon delivery of the Exercise Notice as set forth above, as applicable, SaRonix shall be required to sell the Purchased Assets to Pericom on and subject to the Working Capital Facility Collateral Agent terms and conditions set forth herein.
2.2. The aggregate purchase price (the “Purchase Price”) to be paid by Pericom for the Purchased Assets upon exercise of the Option shall be irrevocable; provided, that the Interim aggregate principal and accrued but unpaid interest on the Tranche A and Tranche B Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required Closing. Pursuant to be delivered pursuant Section 3.2(d), Pericom may pay the Purchase Price by delivering to clauses SaRonix the Tranche A and Tranche B Notes marked “cancelled.”
2.3. At the Closing, SaRonix shall assign to Pericom, and Pericom shall assume and agree to thereafter pay, satisfy, perform and discharge as they come due, (a) the SaRonix Payables and (b) those Liabilities of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is SaRonix specifically identified by Pericom in writing duly signed by in the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such datescollectively, the “Outside Closing DateAssumed Liabilities”). Pericom shall forever defend, indemnify and hold harmless SaRonix from and against any and all Liabilities, losses, claims, damages (including incidental and consequential damages), the Working Capital Facility Collateral Agent amounts paid in settlement, costs and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid expenses (including principal, interest, fees without limitation court costs and expenses, including reasonable attorneys’ fees fees) related to or arising from Pericom’s failure to fully perform and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to discharge the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters responsibilities of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale SaRonix with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralAssumed Liabilities.
Appears in 1 contract
Sources: Purchase Option Agreement (Pericom Semiconductor Corp)
Purchase Option. (a) Upon the occurrence and during the continuance of an Revolving Facility Event of Default or an event and the acceleration of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf any portion of the Interim Notes NoteholdersRevolving Facility Obligations, and any one or more Term Loan Lenders (including any group thereof) holding in the Pari Passu Collateral Agent on behalf aggregate at least a majority in principal amount of the Pari Passu Lenders, after written demand by the Trustee Term Loan Obligations then outstanding (acting in their individual capacity or the Interim Notes Collateral Agent, on the through one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, more affiliates) shall have the option at any time upon five right, but not the obligation, to purchase (5each Term Loan Lender having a ratable right to purchase) Business Days’ prior written notice from Revolving Facility Lender all (but not less than all) of the right, title, and interest of Revolving Facility Lender in and to the Working Capital Revolving Facility Collateral Obligations and the Revolving Facility Documents, in accordance with the procedures set forth in this Section 7.01. For purposes of this Section 7.01, Letters of Credit outstanding under the Revolving Facility Credit Agreement will be deemed to have a principal amount equal to 105% of the maximum potential liability of Revolving Facility Lender in respect thereof under the Revolving Facility Credit Agreement.
(i) Revolving Facility Agent to elect to purchase a agrees that it will notify Term Loan Agent of the occurrence of an Revolving Facility Event of Default and the acceleration of any portion of the Working Capital Revolving Facility Indebtedness from Obligations within three (3) Business Days of the Working Capital date of such acceleration (such notice, a “Revolving Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable PortionAcceleration Notice”). Such notice (an shall prominently include the title “Exercise Revolving Facility Acceleration Notice”.
(ii) from Term Loan Agent agrees that, within three (3) Business Days of receipt by Term Loan Agent of such Revolving Facility Acceleration Notice, it will notify the Interim Notes Collateral Term Loan Lenders of such Revolving Facility Acceleration Notice. Within ten (10) Business Days of the -25- date of the notice by Term Loan Agent of such Revolving Facility Acceleration Notice to any Term Loan Lender (or, if no notice or Pari Passu Collateral Agent, as applicable, to the Working Capital Revolving Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, Acceleration Notice shall have the right been given to such Term Loan Lender, within ten (10) days following Business Days of the date such Term Loan Lender obtains actual knowledge of such Revolving Facility Event of Default and acceleration of any portion of the Revolving Facility Obligations), such Term Loan Lender (or any group of Term Loan Lenders including such Term Loan Lenders) holding in the aggregate at least a majority in principal amount of the Term Loan Obligations then outstanding (acting in its or their individual capacity or through one or more affiliates) may (but shall not be obligated to) send to Term Loan Agent, a written firm offer to purchase (a “Purchase Election”) all (but not less than all) of the right, title, and interest of Revolving Facility Lenders in and to the Revolving Facility Obligations and the Revolving Facility Documents. Promptly upon receipt of any such Purchase Election, Term Loan Agent will notify the information required Revolving Facility Agent of such Purchase Election (a “Purchase Notice”), which Purchase Notice shall specify a date for purchase not less than two (2) and no more than fifteen (15) Business Days from the date of delivery thereof. The Purchase Notice, if given, shall be irrevocable.
(iii) To the extent that the aggregate amount of Revolving Facility Obligations in respect of which Purchase Elections are received exceeds the aggregate amount of Revolving Facility Obligations then outstanding, each Term Loan Lender submitting a Purchase Election in accordance with the foregoing shall be allocated by the Term Loan Agent the right to be delivered pursuant purchase such right, title and interest of Revolving Facility Lenders in and to clauses the Revolving Facility Obligations and the Revolving Facility Documents, (ax) first, with a principal amount of Revolving Facility Obligations then outstanding (based on the aggregate principal amount of Term Loan Obligations then held by such Term Loan Lenders) and (by) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; providedsecond, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration extent any principal amount of such ten-day period. Neither Revolving Facility Obligation remains unallocated, according to the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6foregoing, with a principal amount of Revolving Facility Obligations equal to such Term Loan Lender’s ratable share of such unallocated principal amount of Revolving Facility Obligations in respect of which such Term Loan Lender has submitted such Purchase Election.
(b) On the date specified by in the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Purchase Notice (which shall not be less than five two (52) or more than fifteen (15) Business Days, nor more than the later of (i) thirty (30) days Days after the receipt by the Working Capital Facility Collateral Agent delivery of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Purchase Notice to Revolving Facility Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Revolving Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, purchasing persons or Term Loan Lenders and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent such purchasing persons or Term Loan Lenders shall purchase from the Working Capital Facility Collateral Agent and Working Capital Revolving Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Revolving Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleObligations.
(c) Upon On the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agentpurchasing persons or Term Loan Lenders, as applicable, shall (i) pay to the Working Capital Revolving Facility Collateral Agent, for the benefit of Working Capital Revolving Facility Lenders, as the purchase price therefore, therefor the full amount of the respective Purchasable Portion of all the Working Capital Revolving Facility Indebtedness Obligations (other than Revolving Facility Obligations cash collateralized in accordance with clause (c)(ii) below) then outstanding and unpaid (including principalunpaid, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Revolving Facility Collateral Agent in such amounts as the Working Capital Revolving Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Revolving Facility Collateral Agent and Working Capital Revolving Facility Lenders in connection with (A) any issued and outstanding letters Letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor Credit (but not in any event in an amount greater than 110105% of the aggregate undrawn face amount of such letters Letters of creditCredit) and (B) Bank Product Obligations (but not in any event in an amount greater than the Reserves for the Bank Product), and (iii) agree to reimburse the Working Capital Revolving Facility Collateral Agent and Working Capital Revolving Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or all expenses to the extent caused by reimbursement thereof is earned or resulting from due and payable, in each case, in accordance with the gross negligence or willful misconduct of the Working Capital Revolving Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and Documents (D) excluding any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligationsprepayment premium). Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Revolving Facility Collateral Agent in New York, New York, as the Working Capital Revolving Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Term Loan Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Term Loan Lenders to the bank account designated by the Working Capital Revolving Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (2:00 p.m., New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, purchasing Term Loan Lenders to the bank account designated by the Working Capital Revolving Facility Collateral Agent are received in such bank account later than 1:00 p.m. (2:00 p.m., New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Revolving Facility Collateral Agent and Working Capital Revolving Facility Lenders as to the Working Capital Revolving Facility Indebtedness Obligations so purchased or otherwise and without recourse to the Working Capital Revolving Facility Collateral Agent or Working Capital any Revolving Facility LendersLender, except that the Working Capital each Revolving Facility Collateral Agent and Working Capital Facility Lenders Lender shall represent and warrant: (i) that the amount quoted by such Revolving Facility Lender as its portion of the Working Capital Facility Indebtedness being purchasedpurchase price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (ii) that it owns, or has the Working Capital Facility Collateral Agent right to transfer to such purchasing persons or Term Loan Lenders, as applicable, the rights being transferred, and Working Capital Facility Lenders own the Working Capital Facility Indebtedness (iii) such transfer will be free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedLiens.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during any one or more of Term Loan Lenders or such five Business Day periodother persons designate by Term Loan Agent, exercises and consummates the purchase option set forth in this Section 7.01, (i) Revolving Facility Agent shall have the right, but not the obligation, to immediately resign under the Revolving Facility Credit Agreement, and (ii) such purchasing persons or Term Loan Lenders, as applicable, shall have the right, but not the obligation, to require Revolving Facility Agent to immediately resign under the Revolving Facility Credit Agreement.
(f) Commencing on the date immediately following the Revolving Facility Agent’s receipt of any Purchase Notice, the Interim Notes Collateral Revolving Facility Agent and the Pari Passu Collateral Agent shall send to the Working Capital Revolving Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent Lenders shall not commence complete or take any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; providedEnforcement Action, that as long as the purchase and sale with respect to of the Working Capital Revolving Facility Indebtedness Obligations provided for herein in this Section 7.01 shall have closed by within fifteen (15) Business Days of the Outside Closing Date Revolving Facility Agent’s receipt of the Purchase Notice and the Working Capital Revolving Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e7.01 within such fifteen (15) shall restrict or prohibit Business Day period unless the Working Capital Revolving Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgmentreasonable discretion, deems such action shall determine that the failure to be necessary take any Enforcement Action or the delay in taking any Enforcement Action with respect to preserve or protect the Shared CollateralRevolving Facility First Lien Collateral would materially and adversely prejudice the Revolving Facility Lenders.
Appears in 1 contract
Purchase Option. (a) Upon the occurrence and during the continuance continuation of an Event of Default a Purchase Event, then, in any such case, any one or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf more of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee Term Loan Secured Parties (acting in their individual capacity or the Interim Notes Collateral Agent, on the through one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, more affiliates) shall have the option at any time right, but not the obligation (each Term Loan Secured Party having a ratable right to make the purchase, with each Term Loan Secured Party’s right to purchase being automatically proportionately increased by the amount not purchased by another Term Loan Secured Party), upon five (5) 5 Business Days’ Days prior written notice to the Working Capital Facility Collateral Agent to elect to purchase from (or on behalf of) such Term Loan Secured Parties (a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Purchase Notice”) to Revolving Credit Agreement Agent to acquire from the Interim Notes Collateral Agent or Pari Passu Collateral AgentRevolving Credit Agreement Secured Parties all (but not less than all) of the right, as applicabletitle, and interest of the Revolving Credit Agreement Secured Parties in and to the Working Capital Facility Collateral Agent Revolving Credit Agreement Obligations (up to the Revolving Credit Agreement Cap) and the Revolving Credit Agreement Documents. The Purchase Notice shall be given not later than 20 calendar days after the first occurrence of any Purchase Event and such Purchase Notice, if given, shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Term Loan Agent in its respective Exercise the Purchase Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days 5 Business Days after the receipt by the Working Capital Facility Collateral Revolving Credit Agreement Agent of the Exercise Purchase Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Revolving Credit Agreement Secured Parties shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, purchasing Term Loan Secured Parties and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent purchasing Term Loan Secured Parties shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility LendersRevolving Credit Agreement Secured Parties, the respective Purchasable Portion; provided, that Revolving Credit Agreement Obligations (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior up to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleRevolving Credit Agreement Cap).
(c) Upon On the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall purchasing Term Loan Secured Parties shall
(i) pay to the Working Capital Facility Collateral Revolving Credit Agreement Agent, for the benefit of Working Capital Facility Lendersthe Revolving Credit Agreement Secured Parties, as the purchase price thereforetherefor, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness Revolving Credit Agreement Obligations (up to the Revolving Credit Agreement Cap), other than indemnification obligations for which no claim or demand for payment has been made at such time, and other than Revolving Credit Agreement Obligations cash collateralized in accordance with clause (c)(ii) below) then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), unpaid,
(ii) furnish cash collateral to the Working Capital Facility Collateral Revolving Credit Agreement Agent in such amounts as the Working Capital Facility Collateral Revolving Credit Agreement Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Revolving Credit Agreement Agent and Working Capital Facility Lenders the Revolving Credit Agreement Secured Parties in connection with respect of (A) any issued and outstanding letters Letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor Credit (but not in any event in an amount greater than 110105% of the aggregate undrawn face amount of such letters Letters of credit), Credit) (iii) agree such cash collateral shall be applied to reimburse the Working Capital Facility Collateral Agent payment of all fees and Working Capital Facility Lenders for any checks or other payments provisionally credited charges relating to Letters of Credit and to the Working Capital Facility Indebtednessreimbursement of any drawing under a Letter of Credit as and when such drawing is paid and, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect if a Letter of Qualified Indemnification Claims which in fact result in any lossCredit expires undrawn, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received collateral held by the Interim Notes Collateral Revolving Credit Agreement Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to Letter of Credit shall be turned over remitted to the Working Capital Facility Collateral Term Loan Agent or for the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, benefit of the purchasing Term Loan Secured Parties) and (B) Bank Product Obligations (such cash collateral shall be applied to the reimbursement of the Bank Product Obligations as and when such obligations become due and payable and, at such time as all of the Bank Product Obligations are paid in no event shall full, the Interim Notes Collateral remaining cash collateral held by Revolving Credit Agreement Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than Bank Product Obligations shall be remitted to the Qualified Indemnification ClaimsTerm Loan Agent for the benefit of the purchasing Term Loan Secured Parties), and (C) any asserted, threatened (in no event shall the Interim Notes Collateral Agent writing), or the Pari Passu Collateral Agent have any such liability for any such lossesreasonably expected claims, demands, actions, suits, proceedings, investigations, liabilities, fines, costs, penalties, or damages or that are the subject of the indemnification provisions of the Revolving Credit Agreement (such cash collateral shall be applied to the reimbursement of such obligations as and when they become due and payable and, at such time as all of such obligations are paid in full, the remaining cash collateral held by Revolving Credit Agreement Agent in respect of indemnification obligations shall be remitted to the Term Loan Agent for the benefit of the purchasing Term Loan Secured Parties), and
(d) pay to Revolving Credit Agreement Agent and the other Revolving Credit Agreement Secured Parties the amount of all expenses to the extent caused by earned or resulting from due and payable in accordance with the gross negligence or willful misconduct Revolving Credit Agreement Documents (including the reimbursement of the Working Capital Facility Collateral Agentattorneys fees, as determined by a final non-appealable order of a court of competent jurisdictionfinancial examination expenses, and appraisal fees).
(De) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal of cash or immediately available funds to such bank account of the Working Capital Facility Collateral Revolving Credit Agreement Agent in New York, New York, as the Working Capital Facility Collateral Revolving Credit Agreement Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Term Loan Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Term Loan Secured Parties to the bank account designated by the Working Capital Facility Collateral Revolving Credit Agreement Agent are received in such bank account prior to 1:00 p.m. (2:00 p.m., New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, purchasing Term Loan Secured Parties to the bank account designated by the Working Capital Facility Collateral Revolving Credit Agreement Agent are received in such bank account later than 1:00 p.m. (2:00 p.m., New York City time).
(df) Anything contained in this paragraph to the contrary notwithstanding, in the event that (i) the purchasing Term Loan Secured Parties receive all or a portion of any restructuring fee, prepayment premium, make-whole obligation, or early termination fee payable pursuant to the Revolving Credit Agreement Documents in cash within 180 days following the date on which the purchasing Term Loan Secured Parties pay the purchase price described in clauses (c)(i)-(iii) of this Section 2.12, then, within 3 Business Days after receipt by such Term Loan Secured Parties of such amounts, the purchasing Term Loan Secured Parties shall pay a supplemental purchase price to Revolving Credit Agreement Agent, for the benefit of the Revolving Credit Agreement Secured Parties, in respect of their purchase under this Section 2.12 in an amount equal to the portion of the restructuring fee, prepayment premium, make-whole obligation or early termination fee received by the purchasing Term Loan Secured Parties to which the Revolving Credit Agreement Secured Parties would have been entitled to receive had the purchase under this Section 2.12 not occurred.
(g) Such purchase shall be effected by the execution and delivery of a the form of assignment and acceptance agreement attached as an Exhibit to the Revolving Credit Agreement and shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Revolving Credit Agreement Agent and Working Capital Facility Lenders the other Revolving Credit Agreement Secured Parties as to the Working Capital Facility Indebtedness Revolving Credit Agreement Obligations so purchased, or otherwise otherwise, and without recourse to the Working Capital Facility Collateral Revolving Credit Agreement Agent or Working Capital Facility Lendersany other Revolving Credit Agreement Secured Party, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders each Revolving Credit Agreement Secured Party shall represent and warrant: (i) that the amount quoted by such Revolving Credit Agreement Secured Party as its portion of the Working Capital Facility Indebtedness being purchasedpurchase price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (ii) that it owns, or has the Working Capital Facility Collateral Agent right to transfer to the purchasing Term Loan Secured Parties, the rights being transferred, and Working Capital Facility Lenders own the Working Capital Facility Indebtedness (iii) such transfer will be free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedLiens.
(eh) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during any one or more of the Term Loan Secured Parties exercises and consummates the purchase option set forth in this Section 2.12, (i) Revolving Credit Agreement Agent shall have the right, but not the obligation, to immediately resign under the Revolving Credit Agreement, and (ii) the purchasing Term Loan Secured Parties shall have the right, but not the obligation, to require Revolving Credit Agreement Agent to immediately resign under the Revolving Credit Agreement. Any resignation by Revolving Credit Agreement Agent will not affect its right to retain cash collateral as contemplated under this Section 2.12.
(i) In the event that any one or more of the Term Loan Secured Parties exercises and consummates the purchase option set forth in this Section 2.12, (i) the Revolving Credit Agreement Secured Parties shall retain their indemnification rights under the Revolving Credit Agreement for actions or other matters arising on or prior to the date of such five Business Day periodpurchase or relating to the Excess Revolving Credit Obligations, and (ii) and in the event that, at the time of such purchase, there exists Revolving Credit Agreement Obligations in excess of the Revolving Credit Agreement Cap, the Interim Notes Collateral Agent consummation of such purchase option shall not include (nor shall the purchase price be calculated with respect to) such excess Revolving Credit Agreement Obligations (clauses (i) and (ii), the “Retained Interest”).
(j) In the event that a Retained Interest exists, each Revolving Credit Agreement Secured Party shall, at the request of the purchasing Term Loan Secured Parties, execute an amendment to the Revolving Credit Agreement acknowledging that such Retained Interest consisting of Excess Revolving Credit Agreement Obligations is a last-out tranche, payable in accordance with the priorities set forth in this Agreement. Interest with respect to such Retained Interest consisting of excess Revolving Credit Agreement Obligations shall continue to accrue and be payable in accordance with the terms of the Revolving Credit Agreement Documents, the Retained Interest shall continue to be secured by the Pari Passu Collateral Agent Collateral, and the Retained Interest shall send to be paid (or cash collateralized, as applicable) in accordance with the Working Capital Facility Collateral Agent the irrevocable notice terms of the Interim Notes Collateral Agent’s Revolving Credit Agreement and this Agreement. Each Revolving Credit Agreement Secured Party shall continue to have all rights and remedies of a lender under the Revolving Credit Agreement and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further actionRevolving Credit Agreement Documents; provided, that no Revolving Credit Agreement Secured Party shall have any right to vote on or otherwise consent to any amendment, waiver, departure from, or other modification of any provision of any Revolving Credit Agreement Document except that the consent of the applicable Revolving Credit Agreement Secured Parties shall be required for (i) those matters that require the agreement of all lenders or each affected lender under the Revolving Credit Agreement as in effect on the date of such purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment (ii) matters in full contravention of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained provisions and priorities set forth in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralAgreement.
Appears in 1 contract
Sources: Intercreditor Agreement (Nuverra Environmental Solutions, Inc.)
Purchase Option. (a) Upon Without prejudice to the enforcement of the remedies of the Senior Agents and the other Senior Claimholders, at any time during the fifteen (15) Business Day period following the occurrence and during the continuance of an Event of Default a Triggering Event, then, in any such case, any one or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf more of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee Subordinated Claimholders (acting in their individual capacity or the Interim Notes Collateral Agent, on the through one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, more affiliates) shall have the option right, but not the obligation (each Subordinated Claimholder having a ratable right to make the purchase, with each Subordinated Claimholder’s right to purchase being automatically proportionately increased by the amount not purchased by another Subordinated Claimholder), upon advance written notice from such Subordinated Claimholders (a “Purchase Notice”) to the Senior Agents (which notice may be given at any time upon five (5) Business Days’ prior written notice to during the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days Business Days following receipt the occurrence of the information required Triggering Event), for the benefit of the Senior Claimholders, to be delivered pursuant to clauses acquire from the Senior Claimholders all (a) and (bbut not less than all) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion right, title, and interest of the Working Capital Facility Indebtedness; provided, further, that such revocation is Senior Claimholders in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day periodSenior Obligations and the Senior Loan Documents. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder The Purchase Notice, if given, shall have any rights under this Section 5.6be irrevocable.
(b) On the date specified by in the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Purchase Notice (which shall not be less later than five (5x) ten (10) Business Days, nor more than the later of (i) thirty (30) days Days after the receipt by the Working Capital Facility Collateral Agent Senior Agents of the Purchase Notice or (y) fifteen (15) Business Days after occurrence of the Triggering Event), the Senior Claimholders shall sell to the purchasing Subordinated Claimholders and purchasing Subordinated Claimholders shall purchase from the Senior Claimholders, the Senior Obligations. During the seven (7) Business Day period following occurrence of the Triggering Event, the Senior Agent and the other Senior Claimholders shall not, absent the existence of Exigent Circumstances, Exercise Notice, and any Secured Creditor Remedies until the end of such seven (ii7) Business Day period. In the event that the Subordinated Agent delivers the Purchase Notice to the Senior Agents within the ten (10) days Business Day period following the occurrence of the Triggering Event, the Senior Agent and the other Senior Claimholders shall not, absent the existence of Exigent Circumstances, Exercise any Secured Creditor Remedies (to the extent such action has not been taken) until the earlier of (x) the tenth (10th) Business Day after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, Senior Agents of the information required to be delivered pursuant to clauses Purchase Notice or (ay) and the fifteenth (b15th) Business Day after occurrence of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleTriggering Event.
(c) Upon On the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Subordinated Claimholders shall (i) pay to the Working Capital Facility Collateral each Senior Agent, for the benefit of Working Capital Facility Lendersthe applicable Senior Claimholders, as the purchase price therefore, therefor the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness Senior Obligations (other than Senior Obligations cash collateralized in accordance with clause (c)(ii) below) then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document)unpaid, (ii) furnish cash collateral (A) Letter of Credit Collateralization to the Working Capital Facility Collateral Senior Revolving Loan Agent in such amounts as the Working Capital Facility Collateral Senior Revolving Loan Agent determines is reasonably necessary (but not in excess of 105% of the face amount thereof) to secure the Senior Revolving Loan Agent and the applicable Senior Claimholders in connection with any issued and outstanding Letters of Credit, and (B) Bank Product Collateralization to the Senior Revolving Loan Agent in such amounts as the Senior Revolving Loan Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Senior Revolving Loan Agent and Working Capital Facility Lenders the applicable Senior Claimholders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit)Bank Product Obligations, (iii) agree to reimburse the Working Capital Facility Collateral Agent Senior Agents and Working Capital Facility Lenders the Senior Claimholders for any checks or other payments provisionally credited all expenses to the Working Capital Facility Indebtednessextent earned or due and payable in accordance with the Senior Loan Documents (including the reimbursement of extraordinary expenses, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment financial examination expenses, and appraisal fees), and (iv) agree if the purchasing Subordinated Claimholders include the Sponsor or any of its Affiliates, pay a supplemental purchase price to reimburse each Senior Agent, for the Working Capital Facility Collateral Agent and Working Capital Facility Lenders benefit of the Senior Claimholders, in respect of Qualified Indemnification Claims their purchase under this Section 9 in an amount equal to the portion of the prepayment premium, make-whole obligation or early termination fee to which the Senior Agents and the other Senior Claimholders would have been entitled to receive had the Senior Obligations been paid in fact result full on the date of such purchase and sale. Anything contained in this paragraph to the contrary notwithstanding, in the event that (W) purchasing Subordinated Claimholders do not include the Sponsor or any lossof its Affiliates, cost(X) purchasing Subordinated Claimholders receive all or a portion of any prepayment premium, damage make-whole obligation or expense early termination fee payable pursuant to the Senior Loan Documents in cash, (Y) all Senior Obligations purchased by such purchasing Subordinated Claimholders and all of the Subordinated Obligations, including principal, interest and fees thereon and costs and expenses of collection thereof (including reasonable attorneys’ attorneys fees and legal expenses), are repaid in full in cash, and (Z) each Senior Credit Agreement is terminated, in each case, within 90 days following the date on which the purchasing Subordinated Claimholders pay the purchase price described in clauses (i)-(iii) of this paragraph, then, within three (3) Business Days after receipt by such Subordinated Claimholders of such amounts, purchasing Subordinated Claimholders shall pay a supplemental purchase price to each applicable Senior Agent, for the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess benefit of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agentapplicable Senior Claimholders, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over their purchase under this Section 9 in an amount equal to the Working Capital Facility Collateral Agent portion of the prepayment premium, make-whole obligation or early termination fee received by purchasing Subordinated Claimholders to which the Working Capital Facility Lenders Senior Claimholders would have been entitled to receive had the purchase under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligationsparagraph not occurred. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral applicable Senior Agent in New York, New York, as the Working Capital Facility Collateral such Senior Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Subordinated Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Subordinated Claimholders to the bank account designated by the Working Capital Facility Collateral applicable Senior Agent are received in such bank account prior to 1:00 p.m. (2:00 p.m., New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, purchasing Subordinated Claimholders to the bank account designated by the Working Capital Facility Collateral applicable Senior Agent are received in such bank account later than 1:00 p.m. (2.00 p.m., New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent Senior Agents and Working Capital Facility Lenders the Senior Claimholders as to the Working Capital Facility Indebtedness Senior Obligations so purchased or otherwise and without recourse to the Working Capital Facility Collateral any Senior Agent or Working Capital Facility Lendersany Senior Claimholder, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders each Senior Claimholder shall represent and warrant: (i) that the amount quoted by such Senior Claimholder as its portion of the Working Capital Facility Indebtedness being purchasedpurchase price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (ii) that it owns, or has the Working Capital Facility Collateral Agent right to transfer to purchasing Subordinated Claimholders, the rights being transferred, and Working Capital Facility Lenders own the Working Capital Facility Indebtedness (iii) such transfer will be free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedLiens.
(e) The Working Capital Facility Collateral Agent agrees that it shall give If the Interim Notes Collateral Agent Subordinated Claimholders fail to exercise their purchase right under this Section 9 within the ten (10) day period described above in Section 9(a), or fail to close the purchase within the required time period described above in Section 9(a), the Senior Agents and the Pari Passu Collateral Agent five Senior Claimholders shall have no further obligations to the Subordinated Claimholders under this Section 9.
(5f) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent any one or more of Subordinated Claimholders exercises and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise consummates the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under set forth in this Section 5.69, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral (i) each Senior Agent shall have received payment in full of the Working Capital Facility Indebtedness right, but not the obligation, to immediately resign its role as provided for herein on or before such under the Outside Closing Date. Nothing contained in this Section 5.6(eapplicable Senior Credit Agreement, and (ii) purchasing Subordinated Claimholders shall restrict or prohibit have the Working Capital Facility Collateral right, but not the obligation, to require each Senior Agent from taking action to immediately resign under the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateralapplicable Senior Credit Agreement.
Appears in 1 contract
Sources: Senior Revolving Credit Agreement (Bumble Bee Capital Corp.)
Purchase Option. (a) Upon the occurrence and during the continuance continuation of an Event of Default a Triggering Event, then, in any such case, any one or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf more of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee Second Lien Claimholders (acting in their individual capacity or the Interim Notes Collateral Agent, on the through one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, more affiliates) shall have the option at any time right, but not the obligation (each Second Lien Claimholder having a ratable right to make the purchase, with each Second Lien Claimholder’s right to purchase being automatically proportionately increased by the amount not purchased by another Second Lien Claimholder), upon five (5) Business Days’ prior written notice from (or on behalf of) such Second Lien Claimholders (a “Purchase Notice”) to the Working Capital Facility First Lien Collateral Agent to elect to purchase a portion acquire from the First Lien Claimholders all (but not less than all) of the Working Capital Facility Indebtedness from right, title, and interest of the Working Capital Facility Lenders, ratably First Lien Claimholders in proportion and to the outstanding First Lien Obligations of each outstanding Series of Secured Debt (in each caseand the First Lien Documents. The Purchase Notice, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agentif given, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Second Lien Collateral Agent in its respective Exercise the Purchase Notice (which shall not be less more than five (5) Business Days, nor more than the later of (i) thirty (30) days Days after the receipt by the Working Capital Facility First Lien Collateral Agent of the Exercise Purchase Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders First Lien Claimholders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, purchasing Second Lien Claimholders and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent purchasing Second Lien Claimholders shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility LendersFirst Lien Claimholders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleFirst Lien Obligations.
(c) Upon On the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall purchasing Second Lien Claimholders shall:
(i) pay or cause to the Working Capital Facility be paid to First Lien Collateral Agent, for the benefit of Working Capital Facility Lendersthe First Lien Claimholders, as the purchase price thereforetherefor, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness First Lien Obligations (other than indemnification obligations for which no claim or demand for payment has been made at such time, and other than First Lien Obligations cash collateralized in accordance with clause (c)(ii) below) then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), unpaid,
(ii) furnish or cause to be furnished cash collateral to the Working Capital Facility First Lien Collateral Agent in such amounts as the Working Capital Facility First Lien Collateral Agent determines is reasonably necessary to secure the Working Capital Facility First Lien Collateral Agent and Working Capital Facility Lenders the First Lien Claimholders in connection with respect of (A) any issued and outstanding letters Letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor Credit (but not in any event in an amount greater than 110105% (115% in the case of Letters of Credit denominated in a currency other than U.S. Dollars) of the aggregate undrawn face amount of such letters Letters of credit)Credit) (such cash collateral shall be applied to the reimbursement of any drawing under a Letter of Credit as and when such drawing is paid and, (iii) agree to reimburse if a Letter of Credit expires undrawn, the Working Capital Facility cash collateral held by First Lien Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to Letter of Credit shall be turned over remitted to the Working Capital Facility Second Lien Collateral Agent or for the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6benefit of the purchasing Second Lien Claimholders), (B) Banking Product Obligations constituting First Lien Obligations (such cash collateral shall be applied to the reimbursement of such Banking Product Obligations as and when such obligations become due and payable and, at such time as all of such Banking Product Obligations are paid in no event shall full, the Interim Notes remaining cash collateral held by First Lien Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than such Banking Product Obligations shall be remitted to the Qualified Indemnification ClaimsSecond Lien Collateral Agent for the benefit of the purchasing Second Lien Claimholders), (C) Hedging Obligations (and any Guarantees of such Hedging Obligations) constituting First Lien Obligations (such cash collateral shall be applied to the reimbursement of such Hedging Obligations as and when such obligations become due and payable and, at such time as all of such Hedging Obligations are paid in no event shall full, the Interim Notes remaining cash collateral held by First Lien Collateral Agent or in respect of such Hedging Obligations shall be remitted to the Pari Passu Second Lien Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct benefit of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, purchasing Second Lien Claimholders) and (D) any amounts reimbursed asserted or threatened (in writing) claims, demands, actions, suits, proceedings, investigations, liabilities, fines, costs, penalties, or damages that are the subject of the indemnification provisions of the First Lien Credit Agreement (such cash collateral shall be applied to the reimbursement of such obligations as and when they become due and payable and, at such time as all of such obligations are paid in full, the remaining cash collateral held by the Interim Notes First Lien Collateral Agent or in respect of indemnification obligations shall be remitted to the Pari Passu Second Lien Collateral Agent pursuant for the benefit of the purchasing Second Lien Claimholders), and
(iii) pay or cause to this clause be paid to First Lien Collateral Agent and the other First Lien Claimholders the amount of all expenses to the extent earned or due and payable in accordance with the First Lien Documents (c)(ivincluding the reimbursement of attorneys fees, financial examination expenses, and appraisal fees).
(d) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in of federal funds to such bank account of the Working Capital Facility First Lien Collateral Agent in New York, New York, as the Working Capital Facility First Lien Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Second Lien Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Second Lien Claimholders to the bank account designated by the Working Capital Facility First Lien Collateral Agent are received in such bank account prior to 1:00 p.m. (2:00 p.m., New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, purchasing Second Lien Claimholders to the bank account designated by the Working Capital Facility First Lien Collateral Agent are received in such bank account later than 1:00 p.m. (2:00 p.m., New York City time).
(de) Such purchase shall be effected by the execution and delivery of a customary form of assignment and acceptance agreement, in form and substance reasonably satisfactory to the Second Lien Collateral Agent or Second Lien Claimholders, and shall be expressly made without representation or warranty of any kind by the Working Capital Facility First Lien Collateral Agent and Working Capital Facility Lenders the other First Lien Claimholders as to the Working Capital Facility Indebtedness First Lien Obligations so purchased, or otherwise otherwise, and without recourse to the Working Capital Facility First Lien Collateral Agent or Working Capital Facility Lendersany other First Lien Claimholder, except that the Working Capital Facility First Lien Collateral Agent and Working Capital Facility Lenders each First Lien Claimholder shall represent and warrant: (i) as to an accounting of all First Lien Obligations and the amount of the Working Capital Facility Indebtedness being purchasedFirst Lien Documents, all in reasonable detail; (ii) that the Working Capital Facility Collateral Agent amount quoted by such First Lien Claimholder as its portion of the purchase price represents the amount shown as owing with respect to the claims transferred as reflected on its books and Working Capital Facility Lenders own records, (iii) it owns, or has the Working Capital Facility Indebtedness right to transfer to the purchasing Second Lien Claimholders, the rights being transferred, (iv) such transfer will be free and clear of any Liens or encumbrances and (iiiv) the Working Capital Facility Collateral Agent as to its power and Working Capital Facility Lenders have the right authority to assign the Working Capital Facility Indebtedness execute such assignment and the assignment is duly authorizedassumption agreement.
(ef) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day periodany one or more of the Second Lien Claimholders exercises and consummates the purchase option set forth in this Section 5.8, the Interim Notes Collateral Agent and the Pari Passu (i) First Lien Collateral Agent shall send have the right, but not the obligation, to immediately resign under the Working Capital Facility First Lien Credit Agreement, and (ii) the purchasing Second Lien Claimholders shall have the right, but not the obligation, to require First Lien Collateral Agent to immediately resign under the irrevocable notice First Lien Credit Agreement.
(g) In the event that any one or more of the Interim Notes Collateral Agent’s Second Lien Claimholders exercises and the Pari Passu Collateral Agent’s intention to exercise consummates the purchase option given by set forth in this Section 5.8, the Working Capital Facility Collateral Agent First Lien Claimholders shall retain their indemnification rights under the First Lien Credit Agreement for actions or other matters arising on or prior to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under date of such purchase.
(h) To the extent a Purchase Notice is given to purchase all of the First Lien Obligations in accordance with this Section 5.65.8, the Working Capital Facility Collateral Agent shall not commence right to purchase such First Lien Obligations may be assigned by such Second Lien Claimholder(s) to any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further actionPerson; provided, that no such assignment shall relieve the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full Second Lien Claimholder(s) of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained obligation to consummate such purchase in accordance with this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateralsection 5.8.
Appears in 1 contract
Purchase Option. (a) Upon the occurrence and during the continuance continuation of an Event a Triggering Event, then, in any such case, any one or more of Default Term Loan Claimholders (acting in their individual capacity or an event of default under the Working Capital Facility Documents that is not cured through one or waived within thirty (30more affiliates) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time right, but not the obligation (each Term Loan Claimholder having a ratable right to make the purchase, with each Term Loan Claimholder’s right to purchase being automatically proportionately increased by the amount not purchased by another Term Loan Claimholder), upon five (5) 5 Business Days’ prior Days advance written notice to the Working Capital Facility Collateral Agent to elect to purchase from such Term Loan Claimholders (a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Purchase Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral to ABL Agent, as applicablefor the benefit of ABL Claimholders, to acquire from ABL Claimholders all (but not less than all) of the Working Capital Facility Collateral Agent right, title, and interest of ABL Claimholders in and to the ABL Priority Obligations and the ABL Loan Documents. The Purchase Notice, if given, shall be irrevocable; provided. Upon receipt of such notice, that the Interim Notes Collateral ABL Agent and the Term Agent shall not Exercise any Secured Creditor Remedies (or Pari Passu Collateral Agent, as applicableshall discontinue the exercise of such remedies), shall have the right within ten (10) days following receipt of the information required not release its Liens on any Collateral, or consent to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6Disposition.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Term Agent in its respective Exercise the Purchase Notice (which shall not be less more than five ten (510) Business Days, nor more than the later of (i) thirty (30) days Days after the receipt by the Working Capital Facility Collateral ABL Agent of the Exercise Purchase Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders ABL Claimholders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, purchasing Term Loan Claimholders and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent purchasing Term Loan Claimholders shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility LendersABL Claimholders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleABL Priority Obligations.
(c) Upon On the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Term Loan Claimholders shall (i) pay to the Working Capital Facility Collateral ABL Agent, for the benefit of Working Capital Facility LendersABL Claimholders, as the purchase price therefore, therefor the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness ABL Obligations (other than the Excess ABL Obligations and other than ABL Obligations cash collateralized in accordance with clause (c)(ii) below) then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document)unpaid, (ii) furnish cash collateral to the Working Capital Facility Collateral ABL Agent in such amounts as the Working Capital Facility Collateral ABL Agent determines is reasonably necessary to secure the Working Capital Facility Collateral ABL Agent and Working Capital Facility Lenders ABL Claimholders in connection with (A) any issued and outstanding letters Letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor Credit (but not in any event in an amount greater than 110105% of the aggregate undrawn face amount of such letters Letters of creditCredit) and (B) Bank Product Obligations (but not in any event in an amount greater than the Bank Product Reserve), and (iii) agree to reimburse the Working Capital Facility Collateral ABL Agent and Working Capital Facility Lenders ABL Claimholders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or all expenses to the extent caused by earned or resulting from due and payable in accordance with the gross negligence or willful misconduct ABL Loan Documents (including the reimbursement of the Working Capital Facility Collateral Agentactual, as determined by a final non-appealable order of a court of competent jurisdictionreasonable and documented extraordinary expenses, financial examination expenses, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedappraisal fees). Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Term Loan Claimholders to the bank account designated by the Working Capital Facility Collateral ABL Agent are received in such bank account prior to 1:00 p.m. (2:00 p.m., New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, purchasing Term Loan Claimholders to the bank account designated by the Working Capital Facility Collateral ABL Agent are received in such bank account later than 1:00 p.m. (2:00 p.m., New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral ABL Agent and Working Capital Facility Lenders ABL Claimholders as to the Working Capital Facility Indebtedness ABL Obligations so purchased or otherwise and without recourse to the Working Capital Facility Collateral ABL Agent or Working Capital Facility Lendersany ABL Claimholder, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders each ABL Claimholder shall represent and warrant: (i) that the amount quoted by such ABL Claimholder as its portion of the Working Capital Facility Indebtedness being purchasedpurchase price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (ii) that it owns, or has the Working Capital Facility Collateral Agent right to transfer to purchasing Term Loan Claimholders, the rights being transferred, and Working Capital Facility Lenders own the Working Capital Facility Indebtedness (iii) such transfer will be free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedLiens.
(e) The Working Capital Facility Collateral In the event that any one or more of Term Loan Claimholders exercises and consummates the purchase option set forth in this Section 5.6, (i) ABL Agent agrees that it shall give have the Interim Notes Collateral right, but not the obligation, to immediately resign under the ABL Loan Agreement, and (ii) purchasing Term Loan Claimholders shall have the right, but not the obligation, to require ABL Agent and to immediately resign under the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared CollateralABL Loan Agreement. In the event that during such five Business Day periodof the consummation of the purchase option, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent Excess ABL Obligations shall send be treated pursuant to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral4.1 hereof.
Appears in 1 contract
Sources: Intercreditor Agreement (Conns Inc)
Purchase Option. (a) Upon Notwithstanding anything in this Agreement to the occurrence and during contrary, on or at any time after (i) the continuance commencement of an Event of Default Insolvency or an event of default under Liquidation Proceeding or (ii) the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf acceleration of the Interim Notes NoteholdersPriority Lien Obligations, and the Pari Passu Collateral Agent on behalf holders of the Pari Passu Lenders, after written demand by Second Lien Debt and each of their respective designated Affiliates (the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall “Second Lien Purchasers”) will have the right, at their sole option and election (but will not be obligated), at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Priority Lien Agent, to purchase from the Priority Lien Secured Parties all (but not less than all) Priority Lien Obligations (including unfunded commitments then in effect) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing that are outstanding on the date of such purchase. Promptly following the receipt of such notice, the Priority Lien Agent will deliver to the Second Lien Collateral Agent to elect to purchase a portion statement of the Working Capital Facility Indebtedness from the Working Capital Facility Lendersamount of Priority Lien Debt, ratably in proportion to the outstanding other Priority Lien Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”other than any Priority Lien Obligations constituting Excess Priority Lien Obligations) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt and DIP Financing provided by any of the information required Priority Lien Secured Parties, if any, then outstanding and the amount of the cash collateral requested by the Priority Lien Agent to be delivered pursuant to clauses Section 3.06(b)(ii) below. The right to purchase provided for in this Section 3.06 will expire unless, within 10 Business Days after the receipt by the Second Lien Collateral Agent of such notice from the Priority Lien Agent, the Second Lien Collateral Agent delivers to the Priority Lien Agent an irrevocable commitment of the Second Lien Purchasers to purchase all (a) and (bbut not less than all) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and any loans provided by any of the Working Capital Facility Indebtedness; provided, further, that Priority Lien Secured Parties in connection with a DIP Financing and to otherwise complete such revocation is in writing duly signed by purchase on the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights terms set forth under this Section 5.63.06.
(b) On the date specified by the Interim Notes Second Lien Collateral Agent or Pari Passu Collateral Agent (on behalf of the Second Lien Purchasers) in its respective Exercise Notice such irrevocable commitment (which shall not be less than five (5) Business Days nor more than 20 Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Priority Lien Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)irrevocable commitment), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, Second Lien Purchasers all (but not less than all) Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless any loans provided by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events Priority Lien Secured Parties in connection with a DIP Financing that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon are outstanding on the date of such purchase sale, subject to any required approval of any Governmental Authority then in effect, if any, and only if on the date of such sale, the Interim Notes Collateral Priority Lien Agent and/or receives the Pari Passu Collateral Agent, as applicable, shall following:
(i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenderspayment, as the purchase price thereforefor all Priority Lien Obligations sold in such sale, of an amount equal to the full amount of all Priority Lien Obligations (other than outstanding letters of credit as referred to in clause (ii) below) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and loans provided by any of the respective Purchasable Portion of all the Working Capital Facility Indebtedness Priority Lien Secured Parties in connection with a DIP Financing then outstanding and unpaid (including principal, interest, fees and expensesfees, including reasonable attorneys’ fees and legal expenses expenses, but excluding any early termination fee contingent indemnification obligations for which no claim or prepayment penalty demand for payment has been made at or premium payable pursuant prior to such time); provided that in the case of Hedge Obligations that constitute Priority Lien Active.18117613.5 Obligations, the Second Lien Purchasers shall cause the applicable agreements governing such Hedge Obligations to be assigned and novated or, if such agreements have been terminated, such purchase price shall include an amount equal to the Working Capital Facility Agreement or sum of any other Working Capital Facility Document)unpaid amounts then due in respect of such Hedge Obligations, calculated using the market quotation method and after giving effect to any netting arrangements;
(ii) furnish a cash collateral to the Working Capital Facility Collateral Agent deposit in such amounts amount as the Working Capital Facility Collateral Priority Lien Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with payment of any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit constituting Priority Lien Obligations that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent may become due and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor payable after such sale (but not in any event in an amount greater than 110% one hundred five percent (105%) of the amount then reasonably estimated by the Priority Lien Agent to be the aggregate undrawn face outstanding amount of such letters of creditcredit at such time), which cash collateral shall be (A) held by the Priority Lien Agent as security solely to reimburse the issuers of such letters of credit that become due and payable after such sale and any fees and expenses incurred in connection with such letters of credit and (B) returned to the Second Lien Collateral Agent (except as may otherwise be required by applicable law or any order of any court or other Governmental Authority) promptly after the expiration or termination from time to time of all payment contingencies affecting such letters of credit; and
(iii) agree any agreements, documents or instruments which the Priority Lien Agent may reasonably request pursuant to reimburse which the Working Capital Facility Second Lien Collateral Agent and Working Capital Facility Lenders for the Second Lien Purchasers in such sale expressly assume and adopt all of the obligations of the Priority Lien Agent and the Priority Lien Secured Parties under the Priority Lien Documents and in connection with loans provided by any checks of the Priority Lien Secured Parties in connection with a DIP Financing on and after the date of the purchase and sale and the Second Lien Collateral Agent (or any other payments provisionally credited representative appointed by the holders of a majority in aggregate principal amount of the Second Lien Debt then outstanding) becomes a successor agent thereunder.
(c) Such purchase of the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing shall be made on a pro rata basis among the Second Lien Purchasers giving notice to the Working Capital Facility Indebtedness, and/or as Priority Lien Agent of their interest to which exercise the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree purchase option hereunder according to reimburse each such Second Lien Purchaser’s portion of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, Second Lien Debt outstanding on the one hand, date of purchase or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, portion as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility ObligationsSecond Lien Purchasers may otherwise agree among themselves. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Priority Lien Agent in New York, New York, as the Working Capital Facility Collateral Priority Lien Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Second Lien Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur occurs if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account prior to 1:00 p.m. (12:00 noon, New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account later than 1:00 p.m. (12:00 noon, New York City time).
(d) Such purchase sale shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties as to the Working Capital Facility Indebtedness Priority Lien Obligations, the Collateral or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lendersany Priority Lien Secured Party, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall represent and warrantwarrant severally as to the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing then owing to it: (i) the amount that such applicable Priority Lien Secured Party owns such Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Working Capital Facility Indebtedness being purchased, Priority Lien Secured Parties in connection with a DIP Financing; and (ii) that such applicable Priority Lien Secured Party has the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens necessary corporate or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right other governing authority to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedsuch interests.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 1 contract
Sources: Credit Agreement
Purchase Option. (a) Upon If there is (i) an acceleration of the occurrence and during Senior Obligations in accordance with the continuance of Senior Credit Agreement, (ii) an Event of Default arising from the failure of the Company to make any payment in respect of principal, interest or an event of default fees (other than administrative agency or collateral agency fees) under the Working Capital Facility Documents Senior Credit Agreement that is not cured waived by the Senior Creditors within 60 days of its occurrence, or waived (iii) the commencement of an Insolvency Proceeding (each a “Purchase Event”), then Subordinated Claimholders may, within thirty 10 Business Days of any such Purchase Event, and not afterwards, deliver a Purchase Notice (30as defined below) daysto purchase all, the Interim Notes Collateral Agent on behalf but not less than all, of the Interim Notes Noteholders, Senior Obligations and unfunded commitments under the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Senior Loan Documents that if funded would constitute Senior Obligations or Pari Passu Obligations, as applicable, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each casecollectively, the “Purchasable PortionPurchase Obligations”)) for the Purchase Price. Notwithstanding anything in the Senior Loan Documents to the contrary, no consent of any Obligor to such purchase shall be required. Such purchase will (1) include all principal of, and all accrued and unpaid interest, fees, and expenses in respect of, all Senior Obligations, and all other Senior Obligations and unfunded commitments under the Senior Loan Documents that if funded would constitute Senior Obligations, outstanding at the time of purchase, (2) be made pursuant to an “Assignment” (as such term is defined in the Senior Credit Agreement, but including only those representations and warranties of the Assignor thereunder as are specified in Section 17(b)), whereby the Subordinated Claimholders will assume all funding commitments and Senior Obligations of the Senior Creditors under the Senior Loan Documents, and (3) otherwise be subject to the terms and conditions of this Section 17. Each Senior Claimholder will retain all rights to indemnification provided in the relevant Senior Loan Documents for all claims and other amounts relating to facts and circumstances relating to such Senior Claimholder’s holdings of the Senior Obligations (except to the extent such claims and other amounts were included in the Purchase Price), and such rights shall be secured by the Liens securing the Senior Obligations. No amendment, modification or waiver following any purchase under this Section 17 of any indemnification provisions under the Senior Loan Documents shall be effective as to any Senior Claimholder or any Affiliate or officer, director, employee or other related indemnified person of such Senior Creditor (“Indemnified Senior Person”) without the prior written consent of such Indemnified Senior Person, and such indemnification provisions shall continue in full force and effect for the benefit of the Indemnified Senior Persons whether or not any Senior Loan Documents otherwise remain in effect. (b) (1) The Subordinated Claimholders desiring to purchase all of the Purchase Obligations (the “Purchasing Creditors”) will deliver a written notice (an the “Exercise Purchase Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; providedin accordance with Section 17(a) above that (1) is signed by the Purchasing Creditors, (2) states that it is a Purchase Notice under this Section 17, (3) states that each Purchasing Creditor is irrevocably electing to purchase, in accordance with this Section 17, the percentage of all of the Purchase Obligations stated in the Purchase Notice for that Purchasing Creditor, which percentages must aggregate exactly 100% for all Purchasing Creditors, and (4) designates a purchase date (the “Purchase Date”) on which the purchase will occur, that is (x) at least 5 but not more than 10 Business Days after the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following ’s receipt of the information required to be delivered pursuant to clauses (a) Purchase Notice, and (by) of not more than 20 Business Days after the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and Purchase Event. A Purchase Notice will be ineffective if it is received by the Working Capital Facility Collateral Agent prior after the occurrence giving rise to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business DaysPurchase Event is waived, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one handcured, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required otherwise ceases to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time)exist.
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 1 contract
Sources: Intercreditor and Subordination Agreement (Layne Christensen Co)
Purchase Option. (a) Upon the occurrence and during the continuance of an Bridge Lender agrees that any time following a Purchase Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, LCP shall have the option at any time upon five (5the right but not the obligation) Business Days’ prior written notice for LCP or its designee to purchase the Bridge Notes and all rights to the Working Capital Facility Collateral Agent Bridge Debt Security Interest (collectively the “Bridge Debt”) without warranty or representation or recourse (except as otherwise provided for in the Assignment Agreement) in consideration of payment in good funds to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to Bridge Lender the outstanding Obligations of each outstanding Series of Secured Debt obligations under the Bridge Notes (in each case, the “Purchasable PortionPurchase Price”). Such If LCP or its designee chooses to exercise such right, it must irrevocably notify Bridge Lender thereof within two (2) Business Days following the occurrence of the applicable Purchase Event, and the parties shall close promptly thereafter, but in any event within two (2) Business Days following notice of the exercise of LCP’s purchase right (an the “Exercise NoticePurchase Period”) from the Interim Notes Collateral Agent ). If LCP or Pari Passu Collateral Agentits designee chooses to exercise its purchase right, as applicable, to the Working Capital Facility Collateral Agent such purchase shall be irrevocableeffected pursuant the Assignment Agreement and payment to Bridge Lender of the Purchase Price. Upon LCP or its designee providing Bridge Lender with irrevocable notice of its election to purchase the Bridge Debt on such terms, LCP or its designee shall be obligated to purchase the Bridge Debt for the Purchase Price. If LCP elects not to exercise the purchase right under this Section 10 (or does not so irrevocably provide notice of such exercise within the required timeframe or close the purchase within the Purchase Period), Bridge Lender shall have no further obligations pursuant to this Section 10. Bridge Lender shall not commence any Enforcement Action during the Purchase Period; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agentthat, as applicable, shall have the right within ten (10) days following receipt if upon expiration of the information required to be delivered pursuant to clauses Purchase Period, the parties have not closed the transaction, Bridge Lender may, at its option, commence or pursue any such Enforcement Action. As used herein, the term “Purchase Event” means the occurrence of any of the following events: (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent LCP of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, written notice from a Bridge Lender of the information required intent to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor commence an Enforcement Action in accordance with the terms of the Working Capital Facility Documents as Section 6, which Bridge Lender agrees to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and provide at least two (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to commencing any Enforcement Action, or (b) the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty commencement of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedProceeding.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 1 contract
Purchase Option. (a) Upon the occurrence and during the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall Lessee will have the right, at its option at any time and upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt months prior written notice (which notice shall be irrevocable) to Lessor prior to expiration of the information required Lease Term, to be delivered pursuant to clauses purchase all (a) and (bbut not less than all) of the definition of “Qualified Indemnification Claim” Sites then subject to revoke such election the Lease Supplements at a price equal to the Purchase Option Exercise Amount (the "Purchase Option"). If Lessee shall have elected to purchase such portion the Sites, Lessor shall, upon discharge of the Working Capital Facility Indebtedness; providedLien of the Mortgages pursuant to the provisions thereof, furtherand the payment in full of an amount sufficient to retire the Notes and pay in full the Equity Amount, that such revocation is and the payment of all accrued but unpaid Rent and breakage fees, if any, plus all other amounts (including, without limitation, all Supplemental Rent), fees and expenses then due and payable, transfer by quitclaim deed (or quitclaim ground lease assignment) all of Lessor's right, title and interest in writing duly signed by and to the Interim Notes Collateral Agent Sites to Lessee or Pari Passu Collateral its designee, without recourse or warranty (except as to the absence of Lessor Liens), and re-assign to Lessee, as Construction Agent, any Construction Documents previously assigned by Lessee, as applicableConstruction Agent, to Lessor, against payment by Lessee of the Purchase Option Exercise Amount in immediately available funds. Lessee, at its option, may assign its right to exercise the Purchase Option by written notice thereof to Agent and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of Lessor; provided that (i) thirty (30) days after Lessee shall be bound by any exercise of the receipt Purchase Option by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document)assignee, (ii) furnish cash collateral such assignee shall be bound by the provisions of this Article VI applicable to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit)Purchase Option, (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) no such assignment shall release Lessee from its obligations under this Article VI and, without limitation, Lessee shall remain primarily liable to Lessor for the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice payment of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice all amounts due under this Article VI in respect of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralPurchase Option.
Appears in 1 contract
Purchase Option. (a) Upon Notwithstanding anything in this Agreement to the occurrence and during contrary, on or at any time within sixty (60) days after the continuance 1.5 Lien Agent receives notice of (i) the commencement of an Event of Default Insolvency or an event of default under Liquidation Proceeding or (ii) the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf acceleration of the Interim Notes NoteholdersPriority Lien Obligations, and the Pari Passu Collateral Agent on behalf holders of the Pari Passu Lenders, after written demand by 1.5 Lien Debt and each of their respective designated Affiliates (the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall “1.5 Lien Purchasers”) will have the right, at their sole option and election (but will not be obligated), at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Purchase Notice”) to the Priority Lien Agent, to purchase from the Interim Notes Collateral Priority Lien Secured Parties all (but not less than all) Priority Lien Obligations (including unfunded commitments but excluding Excess Priority Lien Obligations) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing that are outstanding on the date of such purchase. Promptly following the receipt of such notice, the Priority Lien Agent or Pari Passu Collateral Agent, as applicable, will deliver to the Working Capital Facility Collateral 1.5 Lien Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt a statement of the information required amount of Priority Lien Debt (other than Excess Priority Lien Obligations), other Priority Lien Obligations and DIP Financing then outstanding and the amount of the cash collateral requested by the Priority Lien Agent to be delivered pursuant to clauses (aSection 3.06(b)(ii) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election below. The right to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is provided for in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) 3.06 will expire unless, within 10 Business Days, nor more than the later of (i) thirty (30) days Days after the receipt by the Working Capital Facility Collateral 1.5 Lien Agent of such notice from the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Priority Lien Agent, as applicable, the 1.5 Lien Agent delivers to the Priority Lien Agent an irrevocable commitment of the information required 1.5 Lien Purchasers to be delivered pursuant to clauses purchase all (a) and (bbut not less than all) of the definition of “Qualified Indemnification Claim” Priority Lien Obligations (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent including unfunded commitments but excluding Excess Priority Lien Obligations) and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless any loans provided by any Obligor of the Priority Lien Secured Parties in connection with a DIP Financing and to otherwise complete such purchase on the terms set forth under this Section 3.06. Unless the right to purchase shall have expired in accordance with the terms preceding sentence, neither the applicable Priority Lien Representative nor any holder of the Working Capital Facility Documents as to actions Priority Lien Obligations will enforce or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain exercise any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale remedies with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full after receipt of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems Purchase Notice by such action to be necessary to preserve or protect the Shared Collateral.Priority Lien
Appears in 1 contract
Purchase Option. (a) Upon 20.1 During the occurrence and during the continuance Term of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) daysthis Agreement, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, PES shall have the right within ten to purchase the Terminal (10the “Terminal Purchase Option”) days following receipt pursuant to the terms hereof. Such Terminal Purchase Option may be exercised by PES in connection with: (i) a sale by PES of all or substantially all of the information required assets or operations of the Philadelphia Refinery to a bona fide, unaffiliated third party; (ii) an underwritten public offering for cash as evidenced by the retention of an investment bank and the commencement of the preparation of a registration statement with an intention to file upon completion with the Securities and Exchange Commission; or (iii) a public debt financing of not less than $200 million occurring at any time on or after March 31, 2013, the proceeds of which financing are intended to restructure the capital structure of PES (and not for the purpose of capital improvements or expansion) (each, a “Trigger Event”). The terms of the Purchase Option shall be delivered pursuant to clauses as follows:
(a) and At any time PES desires to exercise its Terminal Purchase Option, it shall provide written notice (ba “Terminal Option Notice”) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, SPMT stating that such revocation a Trigger Event is occurring or is reasonably contemplated in writing duly signed good faith by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration PES. Promptly upon receipt of such ten-day periodTerminal Option Notice, SPMT shall provide PES and its designees with access to such information regarding the Terminal as shall be reasonable and customary for PES to conduct due diligence on an asset such as the Terminal. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder PES shall have any rights under this Section 5.6a period of not less than ninety (90) days to evaluate such information.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business DaysSPMT and PES shall, nor more than the later for a period of (i) thirty (30) days after following completion of PES’s due diligence, negotiate in good faith to reach agreement on the receipt by the Working Capital Facility Collateral Agent terms for a purchase of the Exercise Notice, and (ii) ten (10) days after receipt Terminal by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable PortionPES; provided, however, that the Parties agree that: (A) the Working Capital Facility Collateral Agent purchase price shall be paid at closing in cash; (B) SPMT shall not be obligated to make any representations as to the condition of the Terminal; (C) PES shall be required to purchase the real property on which the Terminal is located or, if not feasible, as determined by SPMT in its reasonable judgment, SPMT shall otherwise grant a lease, easement(s) and/or other interests in real property necessary for PES to reasonably own, operate, maintain, repair and Working Capital Facility Lenders replace the Terminal; (D) SPMT shall retain convey all rights operating and maintenance records reasonably necessary for the operation of the Terminal; and (E) SPMT shall convey the Terminal free and clear of any charge, claim, community property interest, covenant, equitable interest, equitable servitude, lien, option, pledge security interest, right of first refusal, or other restriction of any kind, including any restriction on use, transfer, receipt of income, or exercise of any other attribute of ownership. For avoidance of doubt, SPMT shall not be obligated to provide an indemnity against any pre-existing environmental liabilities on, at or under the Terminal.
(c) The purchase price to be indemnified paid for the Terminal shall be: (A) for any sale consummated pursuant to a Terminal Option Notice delivered on or held harmless before December 31, 2013, the product obtained by multiplying (X) the average EBITDA for the Belmont Rack for calendar years 2009, 2010 and 2011 by (Y) [**]; or (B) for any Obligor other sale, the fair market value of the Terminal, as determined ** Certain information in accordance this document has been omitted and filed separately with the terms Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. by three (3) investment banks (the “Appraisers”) which the Parties hereby agree shall be Barclays, Credit Suisse and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ unless one or more of such designated investment banks is unable or unwilling to serve as an Appraiser, in which case the Parties shall mutually agree on one or more replacement investment bank(s). In determining the fair market value of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to Terminal, the closing of Appraisers shall consider all relevant factors, including comparable sales in the pipeline and terminaling industries and the terms and conditions of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result Terminal. The fair market value of the purchase Terminal shall be the average of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, fair market values as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time)Appraisers.
(d) Such purchase To the extent the Parties are unable to reach agreement on any non-price term or condition of sale of the Terminal, such terms and conditions shall be expressly made without representation or warranty of any kind determined by a single Appraiser (the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to “Designated Appraiser”) selected from among the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility LendersAppraisers. The Designated Appraiser shall, except with respect to terms expressly provided herein, base the terms and conditions of sale on those that are reasonable and customary for the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) sale of an industrial asset such as the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedTerminal.
(e) The Working Capital Facility Collateral Agent agrees that it fees of the Appraisers will be split equally between SPMT and PES. Any tank cleaning and freeing of storage tanks (or, alternatively, decommissioning) required as a result of the exercise of the Terminal Purchase Option shall give be paid by [**].
(f) Commencing as of the Interim Notes Collateral Agent date the purchase price and terms and conditions of sale of the Pari Passu Collateral Agent five Terminal are determined, PES will have the right, but not the obligation, for a period of ninety (590) Business Days prior written notice days (such period, the “Terminal Option Period”) to purchase the Terminal at such price and on such terms and conditions. PES shall notify SPMT, in writing delivered during the Terminal Option Period, of its intention to commence purchase the Terminal. Failure to provide such notice within the Terminal Option Period shall be deemed to constitute a decision by PES not to exercise its Terminal Purchase Option.
(g) If PES notifies SPMT in writing during the Terminal Option Period of any enforcement right its intention to exercise its Terminal Purchase Option, both Parties shall be obligated to enter into an agreement incorporating the terms and conditions either agreed to by the Parties or remedy against determined by the Shared CollateralAppraisers (as to price) or the Designated Appraiser (as to other terms). If PES fails to execute and deliver such an agreement within thirty (30) days of expiration of the Terminal Option Period, PES’s Terminal Purchase Option shall be deemed to have expired (with no effect on its ROFR).
(h) If a Trigger Event is not consummated within nine (9) months of the closing of the purchase of the Terminal under this Section 20.1, then PES shall promptly pay to SPMT an additional amount equal to [**] of the purchase price paid by PES at the closing of the Terminal Purchase Option. ** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
20.2 In the event that PES purchases the Terminal pursuant to the Terminal Purchase Option and thereafter determines to sell or contribute to a joint venture the Terminal or any material portion thereof in a transaction that does not include a sale or conveyance of all or substantially all of the Philadelphia Refinery, SPMT shall have a right of first refusal to repurchase the Terminal. The terms of SPMT’s right of first refusal pursuant to this Section 20.2 shall be as follows:
(a) SPMT’s right of first refusal shall be subject to the same terms and conditions as PES’s ROFR pursuant to Section 19, except that all references to SPMT therein shall be deemed to refer to PES and all references to PES therein shall be deemed to refer to SPMT.
(b) The provisions of this Section 20.2 shall remain in effect following the date of this Agreement, regardless of the earlier termination of this Agreement. If, during such five Business Day period, PES sells the Interim Notes Collateral Agent and Terminal pursuant to any transaction that does not permit SPMT to exercise its right of first refusal pursuant to this Section 20.2, PES shall cause the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice purchaser of the Interim Notes Collateral AgentTerminal to assume PES’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent obligations under this Section 5.620.2.
(c) In the event PES enters into a transaction that permits SPMT to exercise its right of first refusal pursuant to this Section 20.2 and SPMT fails to exercise such right in accordance with the terms hereof, all of its rights pursuant to this Section 20.2 shall automatically terminate.
20.3 In the Working Capital Facility Collateral Agent event that PES purchases the Terminal pursuant to the Terminal Purchase Option and thereafter the operation of the Terminal is no longer conducted in connection with refining operations at the Philadelphia Refinery, SPMT shall have an option to repurchase the Terminal at its fair market value at the time of sale. The terms of SPMT’s repurchase option pursuant to this Section 20.3 shall be as follows:
(a) SPMT’s purchase option shall be subject to the same terms and conditions as the Terminal Purchase Option pursuant to Section 20.1, except that: (i) all references to SPMT therein shall be deemed to refer to PES and all references to PES therein shall be deemed to refer to SPMT; (ii) the price described in Section 20.1(c)(A) shall not commence apply; and (iii) the non-price terms and conditions shall be identical to the terms and conditions that applied when PES exercised its Terminal Purchase Option other than reversing the references to the Parties.
(b) The provisions of this Section 20.3 shall remain in effect for [**] years following the date of this Agreement, regardless of the earlier termination of this Agreement. If, during such period, PES sells the Terminal pursuant to any foreclosure or other action transaction that does not permit SPMT to sell or otherwise realize upon exercise its right of first refusal pursuant to this Section 20.3, PES shall cause the Shared Collateral or immediately desist from taking any further action; provided, that purchaser of the purchase Terminal to assume PES’s obligations under this Section 20.3. ** Certain information in this document has been omitted and sale filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateralomitted portions.
Appears in 1 contract
Sources: Marine Dock and Terminating Agreement (Philadelphia Energy Solutions Inc.)
Purchase Option. (a) Upon Notwithstanding anything in this Agreement to the contrary, on or at any time after (i) the commencement of an Insolvency or Liquidation Proceeding, (ii) the acceleration of the Priority Lien Obligations, or (iii) the delivery of any Section 363 Notice or the occurrence and during the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) daysany Section 363 Event, the Interim Notes Collateral Agent on behalf each of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf holders of the Pari Passu Lenders, after written demand by Second Lien Debt and each of their respective designated Affiliates (the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall “Second Lien Purchasers”) will have the several right, at their respective sole option and election (but will not be obligated), at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect Priority Lien Agent, to purchase a portion from the Priority Lien Secured Parties (A) all (but not less than all) Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (B) if applicable, all loans (and related obligations, including interest, fees and expenses) provided by any of the Working Capital Facility Indebtedness Priority Lien Secured Parties in connection with a DIP Financing that are outstanding on the date of such purchase. Promptly following the receipt of such notice, the Priority Lien Agent will deliver to the Second Lien Agent a statement of the amount of Priority Lien Debt, other Priority Lien Obligations (other than any Priority Lien Obligations constituting Excess Priority Lien Obligations) and DIP Financing (including interest, fees, expenses and other obligations in respect of such DIP Financing) provided by any of the Priority Lien Secured Parties, if any, then outstanding. The right to purchase provided for in this Section 3.06 will expire unless, within 10 Business Days after the receipt by the Second Lien Agent of such notice from the Working Capital Facility LendersPriority Lien Agent, ratably in proportion the Second Lien Agent delivers to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (Priority Lien Agent an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt irrevocable commitment of the information required Second Lien Purchasers to be delivered pursuant to clauses purchase (aA) and all (bbut not less than all) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (B) if applicable, all loans (and related obligations, including interest, fees and expenses) provided by any of the Working Capital Facility Indebtedness; provided, further, that Priority Lien Secured Parties in connection with a DIP Financing and to otherwise complete such revocation is in writing duly signed by purchase on the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights terms set forth under this Section 5.63.06.
(b) On the date specified by the Interim Notes Collateral Second Lien Agent or Pari Passu Collateral Agent (on behalf of the Second Lien Purchasers) in its respective Exercise Notice such irrevocable commitment (which shall not be less than five (5) Business Days nor more than 20 Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Priority Lien Agent of such irrevocable commitment), the Exercise Notice, Priority Lien Secured Parties shall sell to the Second Lien Purchasers (i) all (but not less than all) Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as if applicable, all loans (and related obligations, including interest, fees and expenses) provided by any of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, Priority Lien Secured Parties in connection with a DIP Financing that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon are outstanding on the date of such purchase sale, subject to any required approval of any Governmental Authority then in effect, if any, and only if on the date of such sale, the Interim Notes Collateral Priority Lien Agent and/or receives the Pari Passu Collateral Agent, as applicable, shall following:
(i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenderspayment, as the purchase price thereforefor all Priority Lien Obligations sold in such sale, of an amount equal to the full amount of (i) all Priority Lien Obligations other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (ii) if applicable, all loans (and related obligations, including interest, fees and expenses) provided by any of the respective Purchasable Portion of all the Working Capital Facility Indebtedness Priority Lien Secured Parties in connection with a DIP Financing then outstanding and unpaid (including principal, interest, fees and expensesfees, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) , but excluding contingent indemnification obligations for which no claim or demand for payment has been made at or prior to such time); provided that in the case of obligations under Secured Swap Agreements that constitute Priority Lien Obligations the Second Lien Purchasers shall cause the applicable agreements governing such obligations to be assigned and novated or, if such agreements have been terminated, such purchase price shall include an amount equal to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have sum of any liability for such unpaid amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders then due in respect of such Shared Collateral obligations, calculated using the market quotation method and after giving effect to any netting arrangements; and
(2ii) any amounts that are required agreements, documents or instruments which the Priority Lien Agent may reasonably request pursuant to which the Second Lien Agent and the Second Lien Purchasers in such sale expressly assume and adopt all of the obligations of the Priority Lien Agent and the Priority Lien Secured Parties under the Priority Lien Documents and in connection with loans (and related obligations, including interest, fees and expenses) provided by any of the Priority Lien Secured Parties in connection with a DIP Financing on and after the date of the purchase and sale and the Second Lien Agent (or any other representative appointed by the holders of a majority in aggregate principal amount of the Second Lien Obligations then outstanding) becomes a successor agent thereunder.
(c) Such purchase of the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing shall be turned over made on a pro rata basis among the Second Lien Purchasers giving notice to the Working Capital Facility Collateral Priority Lien Agent or of their interest to exercise the Working Capital Facility Lenders under this Agreement, including pursuant purchase option hereunder according to Section 6.6, (B) in no event shall each such Second Lien Purchaser’s portion of the Interim Notes Collateral Agent or any Interim Notes Noteholder, Second Lien Debt outstanding on the one hand, date of purchase or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any [AEG INTERCREDITOR AGREEMENT] portion as such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility ObligationsSecond Lien Purchasers may otherwise agree among themselves. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Priority Lien Agent in New York, New York, as the Working Capital Facility Collateral Priority Lien Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Second Lien Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur occurs if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account prior to 1:00 p.m. (12:00 noon, New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account later than 1:00 p.m. (12:00 noon, New York City time).
(d) Such purchase sale shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties as to the Working Capital Facility Indebtedness Priority Lien Obligations, the Collateral or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lendersany Priority Lien Secured Party, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall represent and warrantwarrant severally as to the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing then owing to it: (i) the amount that such applicable Priority Lien Secured Party owns such Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Working Capital Facility Indebtedness being purchased, Priority Lien Secured Parties in connection with a DIP Financing; and (ii) that such applicable Priority Lien Secured Party has the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens necessary corporate or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right other governing authority to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedsuch interests.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 1 contract
Purchase Option. (a) Upon Notwithstanding anything in this Agreement to the occurrence and during contrary, on or at any time after (i) the continuance commencement of an Event of Default Insolvency or an event of default under Liquidation Proceeding or (ii) the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf acceleration of the Interim Notes NoteholdersPriority Lien Obligations, and the Pari Passu Collateral Agent on behalf holders of the Pari Passu Lenders, after written demand by Second Lien Debt and each of their respective designated Affiliates (the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall “Second Lien Purchasers”) will have the right, at their sole option and election (but will not be obligated), at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect Priority Lien Agent, to purchase a portion from the Priority Lien Secured Parties all (but not less than all) Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and any loans provided by any of the Working Capital Facility Indebtedness from Priority Lien Secured Parties in connection with a DIP Financing that are outstanding on the Working Capital Facility Lendersdate of such purchase. Promptly following the receipt of such notice, ratably in proportion the Priority Lien Agent will deliver to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt Second Lien Trustee a statement of the information required amount of Priority Lien Debt, other Priority Lien Obligations (other than any Priority Lien Obligations constituting Excess Priority Lien Obligations) and DIP Financing provided by any of the Priority Lien Secured Parties, if any, then outstanding and the amount of the cash collateral requested by the Priority Lien Agent to be delivered pursuant to clauses Section 3.06(b)(ii) below. The right to purchase provided for in this Section 3.06 will expire unless, within 10 Business Days after the receipt by the Second Lien Trustee of such notice from the Priority Lien Agent, the Second Lien Trustee delivers to the Priority Lien Agent an irrevocable commitment of the Second Lien Purchasers to purchase all (a) and (bbut not less than all) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and any loans provided by any of the Working Capital Facility Indebtedness; provided, further, that Priority Lien Secured Parties in connection with a DIP Financing and to otherwise complete such revocation is in writing duly signed by purchase on the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights terms set forth under this Section 5.63.06.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent Second Lien Trustee (on behalf of the Second Lien Purchasers) in its respective Exercise Notice such irrevocable commitment (which shall not be less than five (5) Business Days nor more than 20 Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Priority Lien Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)irrevocable commitment), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, Second Lien Purchasers all (but not less than all) Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless any loans provided by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events Priority Lien Secured Parties in connection with a DIP Financing that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon are outstanding on the date of such purchase sale, subject to any required approval of any Governmental Authority then in effect, if any, and only if on the date of such sale, the Interim Notes Collateral Priority Lien Agent and/or receives the Pari Passu Collateral Agent, as applicable, shall following:
(i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenderspayment, as the purchase price thereforefor all Priority Lien Obligations sold in such sale, of an amount equal to the full amount of all Priority Lien Obligations (other than outstanding letters of credit as referred to in clause (ii) below) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and loans provided by any of the respective Purchasable Portion of all the Working Capital Facility Indebtedness Priority Lien Secured Parties in connection with a DIP Financing then outstanding and unpaid (including principal, interest, fees and expensesfees, including reasonable attorneys’ fees and legal expenses expenses, but excluding any early termination fee contingent indemnification obligations for which no claim or prepayment penalty demand for payment has been made at or premium payable pursuant prior to such time); provided that in the case of Hedging Obligations that constitute Priority Lien Obligations the Second Lien Purchasers shall cause the applicable agreements governing such Hedging Obligations to be assigned and novated or, if such agreements have been terminated, such purchase price shall include an amount equal to the Working Capital Facility Agreement or sum of any other Working Capital Facility Document)unpaid amounts then due in respect of such Hedging Obligations, calculated using the market quotation method and after giving effect to any netting arrangements;
(ii) furnish a cash collateral to the Working Capital Facility Collateral Agent deposit in such amounts amount as the Working Capital Facility Collateral Priority Lien Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with payment of any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit constituting Priority Lien Obligations that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent may become due and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor payable after such sale (but not in any event in an amount greater than 110% one hundred five percent (105%) of the amount then reasonably estimated by the Priority Lien Agent to be the aggregate undrawn face outstanding amount of such letters of creditcredit at such time), which cash collateral shall be (A) held by the Priority Lien Agent as security solely to reimburse the issuers of such letters of credit that become due and payable after such sale and any fees and expenses incurred in connection with such letters of credit and (B) returned to the Second Lien Trustee (except as may otherwise be required by applicable law or any order of any court or other Governmental Authority) promptly after the expiration or termination from time to time of all payment contingencies affecting such letters of credit; and
(iii) agree to reimburse any agreements, documents or instruments which the Working Capital Facility Collateral Priority Lien Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as may reasonably request pursuant to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment Second Lien Trustee and (iv) agree to reimburse the Working Capital Facility Collateral Second Lien Purchasers in such sale expressly assume and adopt all of the obligations of the Priority Lien Agent and Working Capital Facility Lenders the Priority Lien Secured Parties under the Priority Lien Documents and in respect connection with loans provided by any of Qualified Indemnification Claims which the Priority Lien Secured Parties in fact result connection with a DIP Financing on and after the date of the purchase and sale and the Second Lien Trustee (or any other representative appointed by the holders of a majority in any loss, cost, damage or expense aggregate principal amount of the Second Lien Indenture Notes then outstanding) becomes a successor agent thereunder.
(c) Such purchase of the Priority Lien Obligations (including reasonable attorneys’ fees unfunded commitments) and legal expenses) any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing shall be made on a pro rata basis among the Second Lien Purchasers giving notice to the Working Capital Facility Collateral Priority Lien Agent and Working Capital Facility Lenders; provided, that (A) in no event will of their interest to exercise the Interim Notes Collateral Agent or Interim Notes Noteholders, purchase option hereunder according to each such Second Lien Purchaser’s portion of the Second Lien Debt outstanding on the one hand, date of purchase or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, portion as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility ObligationsSecond Lien Purchasers may otherwise agree among themselves. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Priority Lien Agent in New York, New York, as the Working Capital Facility Collateral Priority Lien Agent may designate in writing to the Interim Notes Second Lien Collateral Agent and Pari Passu Collateral Agent Trustee for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur occurs if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account prior to 1:00 p.m. (12:00 noon, New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account later than 1:00 p.m. (12:00 noon, New York City time).
(d) Such purchase sale shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties as to the Working Capital Facility Indebtedness Priority Lien Obligations, the Collateral or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lendersany Priority Lien Secured Party, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall represent and warrantwarrant severally as to the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing then owing to it: (i) the amount that such applicable Priority Lien Secured Party own such Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Working Capital Facility Indebtedness being purchased, Priority Lien Secured Parties in connection with a DIP Financing; and (ii) that such applicable Priority Lien Secured Party has the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens necessary corporate or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right other governing authority to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedsuch interests.
(e) The Working Capital Facility After such sale becomes effective, the outstanding letters of credit will remain enforceable against the issuers thereof and will remain secured by the Priority Liens upon the Collateral Agent agrees that it shall give in accordance with the Interim Notes Collateral Agent applicable provisions of the Priority Lien Documents as in effect at the time of such sale, and the Pari Passu Collateral Agent five (5) Business Days prior written notice issuers of its intention to commence the exercise letters of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send credit will remain entitled to the Working Capital Facility Collateral Agent the irrevocable notice benefit of the Interim Notes Priority Liens upon the Collateral Agent’s and sharing rights in the Pari Passu Collateral Agent’s intention proceeds thereof in accordance with the provisions of the Priority Lien Documents as in effect at the time of such sale, as fully as if the sale of the Priority Lien Debt had not been made, but only the Person or successor agent to exercise whom the purchase option given by Priority Liens are transferred in such sale will have the Working Capital Facility Collateral Agent right to foreclose upon or otherwise enforce the Priority Liens and only the Second Lien Purchasers in the sale will have the right to direct such Person or successor as to matters relating to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full enforcement of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralPriority Liens.
Appears in 1 contract
Purchase Option. (a) Upon the occurrence and during the continuance Senior Creditor shall give Junior Agent a copy of an Event any written notice of Default acceleration of any Senior Debt given by Senior Creditor to one or an event of default under the Working Capital Facility Documents that is not cured more Debtors, concurrently with, or waived within thirty (30) daysas soon as practicable after, the Interim Notes Collateral giving of such notice to such Debtors. For a period of 10 calendar days following receipt of such notice by Junior Agent on behalf of (the Interim Notes Noteholders“Option Period”), and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, Junior Creditors shall have the option (the “Purchase Option”) to purchase from Senior Creditor (i) all, but not less than all, of the Senior Debt owed to Senior Creditor at the time of purchase (excluding the Retained Debt, as defined below) and (ii) all of Senior Creditor’s right, title and interest in and to, and all of Senior Creditor’s obligations under, the Senior Loan Documents (excluding the Retained Interests, as defined below, and excluding all rights and remedies of Senior Creditor under and with respect to any warrant, registration rights agreement, capital stock of any Debtor and other similar equity investments) (all such property referred to in clauses (i) and (ii) being collectively called the “Assigned Interests”). At any time during the Option Period, Junior Creditors may exercise the Purchase Option by causing Junior Agent to deliver to Senior Creditor a written notice of intent to exercise the Purchase Option (the “Purchase Option Notice”), in which notice Junior Agent shall specify the date of closing (which shall be a business day within the Option Period). On the closing date specified in the Purchase Option Notice, Senior Creditor shall, pursuant to an assignment agreement in form and substance satisfactory to Senior Creditor and Junior Creditors, assign all of its right, title and interest in and to the Assigned Interests to Junior Creditors, without representation, recourse or warranty (except as expressly set forth below), upon Senior Creditor’s receipt of payment, in cash (and in immediately available federal funds by wire transfer to a bank account designated by Senior Creditor), of the purchase price (the “Option Purchase Price”), which shall be an amount equal to 100% of the Senior Debt owed on the date of payment to Senior Creditor (it being understood and agreed to by all parties that any purchase and sale consummated pursuant to this Section 10 shall be deemed to be a prepayment of all of the Senior Debt for all purposes of the Senior Loan Documents), including, without limitation, (w) all unpaid interest, fees and any other charges, without regard to whether or not such amounts are allowed or are recoverable pursuant to Section 506 of the Bankruptcy Code or otherwise, (x) any prepayment fee or early termination fee set forth in the Senior Loan Documents, and (y) any amounts that are due and payable to Senior Creditor in respect of claims for which Senior Creditor is entitled to indemnification under the Senior Loan Documents, but excluding the Retained Debt. Without duplication of any amounts to be paid as part of the Option Purchase Price, Junior Creditor shall furnish to Senior Creditor on the date of closing on the Purchase Option cash collateral as security to Senior Creditor for the payment of all Asserted Known Indemnification Claims, as defined below, such cash collateral to be an amount equal to 100% of such claims. The election to exercise the Purchase Option pursuant to the Purchase Option Notice shall be irrevocable and shall fully obligate and commit Junior Creditors to acquire the Assigned Interests as herein provided. The amount of and payment of the Option Purchase Price or any other sum required to be paid by Junior Creditors to Senior Creditor pursuant to this Section 10 shall not be subject to any defense, reduction, recoupment or offset, for any reason, including, without limitation, any breach or alleged breach by Senior Creditor at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral of any provision of this Agreement. The failure of Junior Agent to elect to purchase a portion of deliver the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, Purchase Option Notice so that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and it is received by Senior Creditor prior to expiration of the Working Capital Facility Collateral Agent Option Period or to consummate the purchase pursuant to the Purchase Option as provided herein prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder Option Period shall have any rights under this Section 5.6.
(b) On result in the date specified forfeiture of the Purchase Option, unless otherwise agreed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent Senior Creditor in its respective Exercise Notice (which sole discretion. As used herein, the term “Retained Debt” shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, mean any and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information all amounts required to be delivered paid by any Debtor to Senior Creditor pursuant to clauses (a) and (b) any indemnity provisions contained in any of the definition of “Qualified Indemnification Claim” (the later of such datesSenior Loan Documents, the “Outside Closing Date”)), claim for which arises or becomes due and payable after the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell consummation of the purchase by Junior Creditor pursuant to the Interim Notes Collateral Agent and/or Purchase Option; the Pari Passu Collateral Agentterm “Retained Interests” shall mean the rights and interest retained by Senior Creditor under all of the Senior Loan Documents, notwithstanding the sale and the Interim Notes Collateral Agent and/or assignment of the Pari Passu Collateral Agent shall purchase from Assigned Interests, in respect of the Working Capital Facility Collateral Agent Retained Debt and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in respect of indemnification obligations of Debtors in accordance with the Senior Loan Documents (all of which shall survive the sale and assignment of the Assigned Interests and continue to benefit Senior Creditor); and the term “Asserted Known Indemnification Claim” means any matters or circumstances for which notice or demand has been made or asserted against Senior Creditor in writing that at the time of determination could reasonably be expected to result in direct or actual damages and expenses (including, without limitation, reasonable and documented attorneys' fees and disbursements but excluding special, indirect, consequential or punitive damages to Senior Creditor) to Senior Creditor and which are subject to indemnification by any Debtor pursuant to the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior Senior Loan Documents. Any reference to the closing amount of any Asserted Known Indemnification Claim shall mean that amount as reasonably determined by Senior Creditor in light of the facts and circumstances of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtednessunderlying claim. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in In connection with any issued such sale or assignment, each Debtor agrees to execute and outstanding letters deliver to Senior Creditor all such agreements, instruments or documents as Senior Creditor may reasonably request to evidence the survival of credit provided such rights, interest and obligations. The grant of the Purchase Option shall not operate to restrict Senior Creditor from assigning or transferring to any Person any or all of its loan commitments under the Senior Loan Documents or any Senior Debt owing to it or any of its rights or other interests under the Senior Loan Documents, so long as such Person agrees to be bound by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters terms of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral10.
Appears in 1 contract
Sources: Debt Subordination and Intercreditor Agreement (Capital Growth Systems Inc /Fl/)
Purchase Option. (a) Upon If the occurrence and during the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) daysClass A-1 Notes, the Interim Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes Collateral Agent on behalf of the Interim Notes Noteholdersare no longer Outstanding, and the Pari Passu Collateral Agent on behalf of the Pari Passu LendersNelnet, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the Inc. is hereby granted an option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a Pro rata Portion of Financed Eligible Loans held in the Trust Estate at a purchase price equal to the greater of the Pro rata Minimum Purchase Amount and the fair market value of such Financed Eligible Loans as of the Quarterly Distribution Date immediately preceding the date of sale for the purpose of redeeming all or any portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt a Class of the information required to be delivered Auction Rate Notes on any Auction Rate Adjustment Date for such Class of the Auction Rate Notes pursuant to clauses (a) and (bSection 2.09(d) of the definition of “Qualified Indemnification Claim” Indenture. The Pro rata Minimum Purchase Amount means, with respect to revoke such election to purchase such portion the Auction Rate Notes, that amount, together with an allocable amount on deposit in any Account of the Working Capital Facility Indebtedness; providedNote Payment Fund corresponding to such Class of the Auction Rate Notes and a Pro rata Portion of the amounts on deposit in the Capitalized Interest Fund and the Reserve Fund (if such amounts can be released from the Reserve Fund), further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days each after the receipt by distribution of amounts on deposit in the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, Collection Fund on the one handmost recent Distribution Date, which is equal to or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds amount necessary to redeem the Auction Rate Notes proposed to be redeemed pursuant to the redemption provisions of Shared Collateral received by Section 2.09(d) of the Interim Notes Collateral Agent or the Pari Passu Collateral AgentIndenture, as applicable, net of (1) the reasonable costs of collection to pay all amounts due (including reasonable attorneys’ fees any Issuer Derivative Payments and legal expensesapplicable Termination Payments) incurred by or on behalf any Derivative Product corresponding to such Class of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral Auction Rate Notes and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect pay a Pro rata Portion of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any Program Expenses to such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct redemption date. Any portfolio of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent Financed Eligible Loans sold pursuant to this clause Section shall have representative characteristics substantially equivalent to the portfolio of all Financed Eligible Loans including, without limitation, such characteristics as average borrower indebtedness, mix of type of loans (c)(iv) shall constitute Working Capital Facility ObligationsStafford, PLUS, consolidation, subsidized, unsubsidized), delinquenc▇ ▇▇▇ ▇▇fault rate, loans in claim status, maturity, type of educational institution for which the loan funded costs of attendance (four year, two year, proprietary and nonproprietary), identity of Guaranty Agency, and other similar characteristics which may impact upon the value of such Financed Eligible Loans. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account The holder of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing Purchase Option shall exercise such option by delivering a written notice stating its desire to exercise this option to the Interim Notes Collateral Agent Securities Depository, the Indenture Trustee, the Auction Agent, the Broker-Dealers and Pari Passu Collateral Agent for such purpose not less than three (3) the Rating Agencies at least fifteen Business Days prior to the date on which Auction Rate Distribution Date for such amounts are Class of the Auction Rate Notes that it intends to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase exercise its Purchase Option and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, delivering to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Indenture Trustee an amount equal to the bank account designated by the Working Capital Facility Collateral Agent are received in purchase price of such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein Financed Eligible Loans on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action tenth Business Day prior to the extent that Auction Rate Distribution Date for such Class of the Working Capital Facility Collateral AgentAuction Rate Notes. If the holder of the Purchase Option fails to provide the required purchase price, in its good faith judgment, deems no Auction Rate Notes of such action Class shall be called for redemption pursuant to be necessary to preserve or protect the Shared Collateral.Section 2.09(d)
Appears in 1 contract
Sources: Indenture of Trust (Nelnet Inc)
Purchase Option. (a) Upon Without prejudice to the occurrence and during the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf enforcement of the Interim Notes Noteholders, remedies of Senior Agent and the Pari Passu Collateral Agent on behalf other Senior Claimholders, at any time within the 10 day period following a Triggering Event, any one or more of the Pari Passu Lenders, after written demand by the Trustee Subordinated Claimholders (acting in their individual capacity or the Interim Notes Collateral Agent, on the through one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, more affiliates) shall have the option right, but not the obligation (each Subordinated Claimholder having a ratable right to make the purchase, with each Subordinated Claimholder's right to purchase being automatically proportionately increased by the amount not purchased by another Subordinated Claimholder), upon at any time upon least five (5) Business Days’ prior Days advance written notice to the Working Capital Facility Collateral Agent to elect to purchase from such Subordinated Claimholders (a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Purchase Notice”) to Senior Agent, for the benefit of the Senior Claimholders, to acquire from the Interim Notes Collateral Agent or Pari Passu Collateral AgentSenior Claimholders all (but not less than all) of the right, as applicabletitle, and interest of the Senior Claimholders in and to the Working Capital Facility Collateral Agent Senior Priority Obligations and the Senior Loan Documents. The Purchase Notice, if given, shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by in the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Purchase Notice (which shall not be less than at least five (5) Business Days, nor more than the later of (i) thirty (30) days Days after the receipt by the Working Capital Facility Collateral Senior Agent of the Exercise Purchase Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Senior Claimholders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, purchasing Subordinated Claimholders and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent purchasing Subordinated Claimholders shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility LendersSenior Claimholders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleSenior Priority Obligations.
(c) Upon On the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Subordinated Claimholders shall (i) pay to the Working Capital Facility Collateral Senior Agent, for the benefit of Working Capital Facility Lendersthe Senior Claimholders, as the purchase price therefore, therefor the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness Senior Obligations (other than the Excess Senior Obligations and other than Senior Obligations cash collateralized in accordance with clause (c)(ii) below) then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document)unpaid, (ii) furnish cash collateral to the Working Capital Facility Collateral Senior Agent in such amounts as the Working Capital Facility Collateral Senior Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Senior Agent and Working Capital Facility Lenders the applicable Senior Claimholders in connection with (A) any issued and outstanding letters Letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders Credit and (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent B) Bank Product Obligations,' and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Senior Agent and Working Capital Facility Lenders the Senior Claimholders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or all out-of-pocket expenses to the extent caused by or resulting from due and payable in accordance with the gross negligence or willful misconduct Senior Loan Documents (including the reimbursement of the Working Capital Facility Collateral Agentextraordinary expenses, as determined by a final non-appealable order of a court of competent jurisdictionfinancial examination expenses, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligationsappraisal fees). Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Senior Agent in New York, New York, as the Working Capital Facility Collateral Senior Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Subordinated Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Subordinated Claimholders to the bank account designated by the Working Capital Facility Collateral Senior Agent are received in such bank account prior to 1:00 p.m. (2:00 p.m., New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, purchasing Subordinated Claimholders to the bank account designated by the Working Capital Facility Collateral Senior Agent are received in such bank account later than 1:00 p.m. (2:00 p.m., New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Senior Agent and Working Capital Facility Lenders the Senior Claimholders as to the Working Capital Facility Indebtedness Senior Obligations so purchased or otherwise and without recourse to the Working Capital Facility Collateral Senior Agent or Working Capital Facility Lendersany other Senior Claimholder, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders each Senior Claimholder shall represent and warrant: (i) that the amount quoted by such Senior Claimholder as its portion of the Working Capital Facility Indebtedness being purchasedpurchase price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (ii) that it owns, or has the Working Capital Facility Collateral Agent right to transfer to purchasing Subordinated Claimholders, the rights being transferred, and Working Capital Facility Lenders own the Working Capital Facility Indebtedness (iii) such transfer will be free and clear of any Liens or encumbrances and (iii) of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedSenior Claimholder.
(e) The Working Capital Facility Collateral Agent agrees that it shall give If the Interim Notes Collateral Subordinated Claimholders fail to exercise their purchase right under this Section 9 within the 10 day period described above in Section 9(a), or fail to close the purchase within the required time period described above in Section 9(a), Senior Agent and the Pari Passu Collateral Agent five Senior Claimholders shall have no further obligations to the Subordinated Claimholders under this Section 9.
(5f) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice any one or more of the Interim Notes Collateral Agent’s Subordinated Claimholders exercises and the Pari Passu Collateral Agent’s intention to exercise consummates the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under set forth in this Section 5.69, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral (i) Senior Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before right, but not the Outside Closing Date. Nothing contained in this Section 5.6(eobligation, to immediately resign under the Senior Credit Agreement, and (ii) purchasing Subordinated Claimholders shall restrict or prohibit have the Working Capital Facility Collateral right, but not the obligation, to require Senior Agent from taking action to immediately resign under the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralSenior Credit Agreement.
Appears in 1 contract
Sources: Intercreditor and Subordination Agreement (Global Telecom & Technology, Inc.)
Purchase Option. (a) Upon Notwithstanding anything in this Agreement to the occurrence and during contrary, on or at any time within sixty (60) days after the continuance Second Lien Collateral Trustee receives notice of (i) the commencement of an Event of Default Insolvency or an event of default under Liquidation Proceeding or (ii) the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf acceleration of the Interim Notes NoteholdersPriority Lien Obligations, and the Pari Passu Collateral Agent on behalf holders of the Pari Passu Lenders, after written demand by Second Lien Debt and each of their respective designated Affiliates (the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall “Second Lien Purchasers”) will have the right, at their sole option and election (but will not be obligated), at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Purchase Notice”) to the Priority Lien Agent, to purchase from the Interim Notes Collateral Priority Lien Secured Parties all (but not less than all) Priority Lien Obligations (including unfunded commitments but excluding Excess Priority Lien Obligations) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing that are outstanding on the date of such purchase. Promptly following the receipt of such notice, the Priority Lien Agent or Pari Passu Collateral Agent, as applicable, will deliver to the Working Capital Facility Second Lien Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt Trustee a statement of the information required amount of Priority Lien Debt (other than Excess Priority Lien Obligations), other Priority Lien Obligations and DIP Financing then outstanding and the amount of the cash collateral requested by the Priority Lien Agent to be delivered pursuant to clauses Section 3.06(b)(ii) below. The right to purchase provided for in this Section 3.06 will expire unless, within 10 Business Days after the receipt by the Second Lien Collateral Trustee of such notice from the Priority Lien Agent, the Second Lien Collateral Trustee delivers to the Priority Lien Agent an irrevocable commitment of the Second Lien Purchasers to purchase all (a) and (bbut not less than all) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion Priority Lien Obligations (including unfunded commitments but excluding Excess Priority Lien Obligations) and any loans provided by any of the Working Capital Facility Indebtedness; provided, further, that Priority Lien Secured Parties in connection with a DIP Financing and to otherwise complete such revocation is in writing duly signed by purchase on the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights terms set forth under this Section 5.63.06. Unless the right to purchase shall have expired in accordance with the preceding sentence, neither the applicable Priority Lien Representative nor any holder of Priority Lien Obligations will enforce or exercise any rights or remedies with respect to the Collateral after receipt of the Purchase Notice by such Priority Lien Representative.
(b) On the date specified by the Interim Notes Second Lien Collateral Agent or Pari Passu Collateral Agent Trustee (on behalf of the Second Lien Purchasers) in its respective Exercise Notice such irrevocable commitment (which shall not be less than five (5) Business Days nor more than 20 Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Priority Lien Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)irrevocable commitment), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, Second Lien Purchasers all (but not less than all) Priority Lien Obligations (including unfunded commitments but excluding Excess Priority Lien Obligations) and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless any loans provided by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events Priority Lien Secured Parties in connection with a DIP Financing that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon are outstanding on the date of such purchase sale, subject to any required approval of any Governmental Authority then in effect, if any, and only if on the date of such sale, the Interim Notes Collateral Priority Lien Agent and/or receives the Pari Passu Collateral Agent, as applicable, shall following:
(i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenderspayment, as the purchase price thereforefor all Priority Lien Obligations sold in such sale, of an amount equal to the full amount of all Priority Lien Obligations (other than (x) outstanding letters of credit as referred to in clause (ii) below and (y) any Priority Lien Obligations constituting Excess Priority Lien Obligations) and loans provided by any of the respective Purchasable Portion of all the Working Capital Facility Indebtedness Priority Lien Secured Parties in connection with a DIP Financing then outstanding and unpaid (including principal, interest, fees and expensesfees, including reasonable attorneys’ fees and legal expenses expenses, but excluding any early termination fee contingent indemnification obligations for which no claim or prepayment penalty demand for payment has been made at or premium payable pursuant prior to such time); provided that in the case of Hedging Obligations that constitute Priority Lien Obligations the Second Lien Purchasers shall cause the applicable agreements governing such Hedging Obligations to be assigned and novated or, if such agreements have been terminated, such purchase price shall include an amount equal to the Working Capital Facility Agreement or sum of any other Working Capital Facility Document)unpaid amounts then due in respect of such Hedging Obligations, calculated using the market quotation method and after giving effect to any netting arrangements;
(ii) furnish a cash collateral to the Working Capital Facility Collateral Agent deposit in such amounts amount as the Working Capital Facility Collateral Priority Lien Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with payment of any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit constituting Priority Lien Obligations that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent may become due and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor payable after such sale (but not in any event in an amount greater than 110% one hundred five percent (105%) of the amount then reasonably estimated by the Priority Lien Agent to be the aggregate undrawn face outstanding amount of such letters of creditcredit at such time), which cash collateral shall be (A) held by the Priority Lien Agent as security solely to reimburse the issuers of such letters of credit that become due and payable after such sale and any fees and expenses incurred in connection with such letters of credit and (B) returned to the Second Lien Collateral Trustee (except as may otherwise be required by applicable law or any order of any court or other Governmental Authority) promptly after the expiration or termination from time to time of all payment contingencies affecting such letters of credit; and
(iii) agree to reimburse any agreements, documents or instruments which the Working Capital Facility Collateral Priority Lien Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as may reasonably request pursuant to which the Working Capital Facility Second Lien Collateral Agent or Working Capital Facility Lenders has not yet received final payment Trustee and (iv) agree to reimburse the Working Capital Facility Collateral Second Lien Purchasers in such sale expressly assume and adopt all of the obligations of the Priority Lien Agent and Working Capital Facility Lenders the Priority Lien Secured Parties under the Priority Lien Documents and in respect connection with loans provided by any of Qualified Indemnification Claims which the Priority Lien Secured Parties in fact result connection with a DIP Financing on and after the date of the purchase and sale and the Second Lien Collateral Trustee (or any other representative appointed by the holders of a majority in any loss, cost, damage or expense aggregate principal amount of the Second Lien Term Loans then outstanding) becomes a successor agent thereunder.
(c) Such purchase of the Priority Lien Obligations (including reasonable attorneys’ fees unfunded commitments but excluding Excess Priority Lien Obligations) and legal expenses) any loans provided by any of the Secured Parties in connection with a DIP Financing shall be made on a pro rata basis among the Second Lien Purchasers giving notice to the Working Capital Facility Collateral Priority Lien Agent and Working Capital Facility Lenders; provided, that (A) in no event will of their interest to exercise the Interim Notes Collateral Agent or Interim Notes Noteholders, purchase option hereunder according to each such Second Lien Purchaser’s portion of the Second Lien Debt outstanding on the one hand, date of purchase or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, portion as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility ObligationsSecond Lien Purchasers may otherwise agree among themselves. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Priority Lien Agent in New York, New York, as the Working Capital Facility Collateral Priority Lien Agent may designate in writing to the Interim Notes Second Lien Collateral Agent and Pari Passu Collateral Agent Trustee for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur occurs if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account prior to 1:00 p.m. (12:00 noon, New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account later than 1:00 p.m. (12:00 noon, New York City time).
(d) Such purchase sale shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties as to the Working Capital Facility Indebtedness Priority Lien Obligations, the Collateral or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lendersany Priority Lien Secured Party, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall represent and warrantwarrant severally as to the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing then owing to it: (i) the amount that such applicable Priority Lien Secured Party owns such Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness Priority Lien Secured Parties in connection with a DIP Financing free and clear of any Liens or encumbrances Liens; and (iiiii) that such applicable Priority Lien Secured Party has the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right necessary corporate or other governing authority to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedsuch interests.
(e) The Working Capital Facility After such sale becomes effective, the outstanding letters of credit will remain enforceable against the issuers thereof and will remain secured by the Priority Liens upon the Collateral Agent agrees that it shall give in accordance with the Interim Notes Collateral Agent applicable provisions of the Priority Lien Documents as in effect at the time of such sale, and the Pari Passu Collateral Agent five (5) Business Days prior written notice issuers of its intention to commence the exercise letters of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send credit will remain entitled to the Working Capital Facility Collateral Agent the irrevocable notice benefit of the Interim Notes Priority Liens upon the Collateral Agent’s and sharing rights in the Pari Passu Collateral Agent’s intention proceeds thereof in accordance with the provisions of the Priority Lien Documents as in effect at the time of such sale, as fully as if the sale of the Priority Lien Debt had not been made, but only the Person or successor agent to exercise whom the purchase option given by Priority Liens are transferred in such sale will have the Working Capital Facility Collateral Agent right to foreclose upon or otherwise enforce the Priority Liens and only the Second Lien Purchasers in the sale will have the right to direct such Person or successor as to matters relating to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full enforcement of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralPriority Liens.
Appears in 1 contract
Purchase Option. (a) Upon Exercise On or after the occurrence and during the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf entry of the Interim Notes NoteholdersOrder, the Consenting Secured Noteholders shall deliver, or cause to be delivered, a “Purchase Notice” to Gibson and the administrative agent under that certain loan agreement (the “ABL Facility”), dated as of February 15, 2017, by and among the Company, Gibson International Sales LLC, and ▇▇▇▇▇▇ Pro Audio Corp., as borrowers, the Pari Passu Collateral Agent on behalf guarantors party thereto, the lenders party thereto from time to time, and Bank of America, N.A., as administrative agent (the “ABL Agent”) in accordance with (and as defined in) Section 8.21 of the Pari Passu Lenders, after written demand by Intercreditor Agreement (as defined in the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, ABL Facility). As soon as applicable, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each casereasonably practicable thereafter, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from Consenting Secured Noteholders shall exercise the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to Purchase Option described in the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Purchase Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Intercreditor Agreement. The Interim DIP Order shall provide (among other things) that (i) subject to approval and payment in full of all fees set forth in the DIP Facility Documents as Term Sheet, the Consenting Secured Noteholders shall waive all rights to actions or events that occurred or did not occur prior payment of any prepayment premium on account of any of the ABL Obligations acquired pursuant to their exercise of the Purchase Option, (ii) immediately upon the closing of the Purchase Option, all ABL Obligations shall be immediately deemed to be refinanced by the DIP Facility and to be DIP Obligations under the DIP Documents (other than Letters of Credit, which shall remain cash collateralized in accordance with the terms of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Intercreditor Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse all fees described in the Working Capital DIP Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited Term Sheet shall be immediately approved with respect to the Working Capital entire amount of the DIP Commitments, notwithstanding any “roll-up” or refinancing of the ABL Facility Indebtednesspursuant to the Purchase Option, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree all lenders and the Administrative Agent under the ABL Facility are authorized and directed to reimburse consummate the Working Capital Facility Purchase Option in accordance with the terms of the Intercreditor Agreement. Until the closing of the Purchase Option, (i) no DIP Obligations shall prime any liens held by the Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or ABL Priority Collateral (as defined in the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of ABL Facility) under the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdictionABL Facility, and (Dii) any amounts reimbursed by all proceeds of the Interim Notes ABL Priority Collateral Agent or (as defined in the Pari Passu Collateral Agent pursuant to this clause (c)(ivIntercreditor Agreement) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer applied to reduce the DIP obligations on a daily basis in federal funds to such bank account accordance with Section 4.1 of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time)Intercreditor Agreement.
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 1 contract
Sources: Restructuring Support Agreement
Purchase Option. (a) Upon The Mortgage Lender hereby agrees with and for the occurrence and during benefit of the continuance Holding Company Lenders that, in the case of an Event of Default or an event of default under the Working Capital Facility Mortgage Loan Documents that is not cured or waived within thirty (30) daysresulting in an acceleration of the Mortgage Loan by the Mortgage Lender, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Holding Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, Lenders shall have the option at any a one (1) time upon five (5) Business Days’ prior right, exercisable on written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “"Exercise Notice”") from given by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, Holding Company Lenders to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right Mortgage Lender within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days Days after receipt by the Interim Notes Collateral Agent of notice of such acceleration, without waiving or Pari Passu Collateral Agentcuring the Event of Default, as to purchase all right, title and interest of the Mortgage Lender in and to the Mortgage Loan in its entirety at a price equal to the greater of (x) the fair market value of the Mortgage Loan and (y) the aggregate of the principal, all ac- crued and unpaid interest (including, if applicable, of interest at the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)default rate), late charges, prepayment premiums and all other amounts due from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell Mortgage Borrower under the Mortgage Loan Documents as set forth by the Mortgage Lender in a notice given to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Holding Company Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent within five (5) Business Days prior written after the Mortgage Lender's receipt of the Exercise Notice, as such notice may be updated through the closing date of its intention the purchase of the Mortgage Loan. The closing of the purchase of the Mortgage Loan by the Holding Company Lenders pursuant to commence the exercise Exercise Notice shall take place within fifteen (15) Business Days after delivery of the Exercise Notice at such place in New York County, New York as shall be reasonably designated by the Mortgage Lender. At any such closing the Mortgage Lender shall, upon receipt of (i) the applicable purchase price therefor and (ii) an Opinion of Counsel to the effect that such purchase constitutes a "qualified liquidation" (as such term is defined in Section 860F(a)(4) of the Code), assign and transfer to the Hold- ing Company Lenders all right, title and interest of the Mortgage Lender in and to the Mortgage Loan and all Mortgage Loan Docu- ments and lender's title insurance policies then held by the Mortgage Lender pursuant to such instruments of assignment (which, in the case of any enforcement recorded Mortgage Loan Documents, shall be in recordable form) as shall be reasonably acceptable to the Mortgage Lender and the Holding Company Lenders. Any sale of the Mortgage Loan by the Mortgage Lender to the Holding Company Lenders pursuant to the foregoing purchase option shall be with- out any representation by and/or recourse to the Mortgage Lender, except for representations from the Mortgage Lender that it has good title to the Mortgage Loan and has all requisite right or remedy against and authority to sell and assign the Shared Collateralsame to the Holding Company Lenders. In the event that during such five Business Day period, the Interim Notes Collateral Agent purchase price for the Mortgage Loan shall be based upon the fair market value thereof and the Pari Passu Collateral Agent Holding Company Lenders shall send dispute the Mortgage Lender's calculation of the fair market value of the Mortgage Loan by written notice to the Working Capital Facility Collateral Agent Mortgage Lender (a "Dispute Notice") within five (5) Business Days after the irrevocable notice delivery by the Mortgage Lender of its fair market value determination, then the parties shall use good faith efforts for a period of up to five (5) Business Days after the delivery of the Interim Notes Collateral Agent’s Dispute Notice to agree upon the fair market value of the Mortgage Loan and, in the event no such agreement is reached, neither party shall have any further obligation to the other in connection with the sale and purchase of the Pari Passu Collateral Agent’s intention to exercise the purchase option given Mortgage Loan. The Holding Company Lenders will pay all costs and expenses incurred by the Working Capital Facility Collateral Agent to Mortgage Lender in connection with the Interim Notes Collateral Agent and Pari Passu Collateral Agent Holding Company Lender's exercise of their rights under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral6.
Appears in 1 contract
Sources: Recognition Agreement (Wellsford Real Properties Inc)
Purchase Option. (a) Upon Notwithstanding anything in this Agreement to the occurrence and during contrary, after the continuance Second Lien Collateral Trustee receives notice of (i) the commencement of an Event of Default Insolvency or an event of default under Liquidation Proceeding or (ii) the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf acceleration of the Interim Notes NoteholdersPriority Lien Obligations, and the Pari Passu Collateral Agent on behalf holders of the Pari Passu Lenders, after written demand by Second Lien Debt and each of their respective designated Affiliates (the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall “Second Lien Purchasers”) will have the right, at their sole option and election (but will not be obligated), at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Purchase Notice”) to the Priority Lien Agent, to purchase from the Interim Notes Collateral Priority Lien Secured Parties all (but not less than all) Priority Lien Obligations (including unfunded commitments but excluding Excess Priority Lien Obligations) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing that are outstanding on the date of such purchase. Promptly following the receipt of such notice, the Priority Lien Agent or Pari Passu Collateral Agent, as applicable, will deliver to the Working Capital Facility Second Lien Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt Trustee a statement of the information required amount of Priority Lien Debt (other than Excess Priority Lien Obligations), other Priority Lien Obligations and DIP Financing then outstanding and the amount of the cash collateral requested by the Priority Lien Agent to be delivered pursuant to clauses Section 3.06(b)(ii) below. The right to purchase provided for in this Section 3.06 will expire unless, within 10 Business Days after the receipt by the Second Lien Collateral Trustee of such notice from the Priority Lien Agent, the Second Lien Collateral Trustee delivers to the Priority Lien Agent an irrevocable commitment of the Second Lien Purchasers to purchase all (a) and (bbut not less than all) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion Priority Lien Obligations (including unfunded commitments but excluding Excess Priority Lien Obligations) and any loans provided by any of the Working Capital Facility Indebtedness; provided, further, that Priority Lien Secured Parties in connection with a DIP Financing and to otherwise complete such revocation is in writing duly signed by purchase on the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights terms set forth under this Section 5.63.06. Unless the right to purchase shall have expired in accordance with the preceding sentence or under Section 3.06(b), neither the applicable Priority Lien Representative nor any holder of Priority Lien Obligations will enforce or exercise any rights or remedies with respect to the Collateral after receipt of the Purchase Notice by such Priority Lien Representative.
(b) On the date specified by the Interim Notes Second Lien Collateral Agent or Pari Passu Collateral Agent Trustee (on behalf of the Second Lien Purchasers) in its respective Exercise Notice such irrevocable commitment (which shall not be less than five (5) Business Days nor more than 20 Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Priority Lien Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)irrevocable commitment), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, Second Lien Purchasers all (but not less than all) Priority Lien Obligations (including unfunded commitments but excluding Excess Priority Lien Obligations) and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless any loans provided by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events Priority Lien Secured Parties in connection with a DIP Financing that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon are outstanding on the date of such purchase sale, subject to any required approval of any Governmental Authority then in effect, if any, and only if on the date of such sale, the Interim Notes Collateral Priority Lien Agent and/or receives the Pari Passu Collateral Agent, as applicable, shall following:
(i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenderspayment, as the purchase price thereforefor all Priority Lien Obligations sold in such sale, of an amount equal to the full amount of all Priority Lien Obligations (other than (x) outstanding letters of credit as referred to in clause (ii) below and (y) any Priority Lien Obligations constituting Excess Priority Lien Obligations) and loans provided by any of the respective Purchasable Portion of all the Working Capital Facility Indebtedness Priority Lien Secured Parties in connection with a DIP Financing then outstanding and unpaid (including principal, interest, fees and expensesfees, including reasonable attorneys’ fees and legal expenses expenses, but excluding any early termination fee contingent indemnification obligations for which no claim or prepayment penalty demand for payment has been made at or premium payable pursuant prior to such time); provided that in the case of Hedging Obligations that constitute Priority Lien Obligations the Second Lien Purchasers shall cause the applicable agreements governing such Hedging Obligations to be assigned and novated or, if such agreements have been terminated, such purchase price shall include an amount equal to the Working Capital Facility Agreement or sum of any other Working Capital Facility Document)unpaid amounts then due in respect of such Hedging Obligations, calculated using the market quotation method and after giving effect to any netting arrangements;
(ii) furnish a cash collateral to the Working Capital Facility Collateral Agent deposit in such amounts amount as the Working Capital Facility Collateral Priority Lien Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with payment of any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit constituting Priority Lien Obligations that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent may become due and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor payable after such sale (but not in any event in an amount greater than 110% one hundred five percent (105%) of the amount then reasonably estimated by the Priority Lien Agent to be the aggregate undrawn face outstanding amount of such letters of creditcredit at such time), which cash collateral shall be (A) held by the Priority Lien Agent as security solely to reimburse the issuers of such letters of credit that become due and payable after such sale and any fees and expenses incurred in connection with such letters of credit and (B) returned to the Second Lien Collateral Trustee (except as may otherwise be required by applicable law or any order of any court or other Governmental Authority) promptly after the expiration or termination from time to time of all payment contingencies affecting such letters of credit; and
(iii) agree to reimburse any agreements, documents or instruments which the Working Capital Facility Collateral Priority Lien Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as may reasonably request pursuant to which the Working Capital Facility Second Lien Collateral Agent or Working Capital Facility Lenders has not yet received final payment Trustee and (iv) agree to reimburse the Working Capital Facility Collateral Second Lien Purchasers in such sale expressly assume and adopt all of the obligations of the Priority Lien Agent and Working Capital Facility Lenders the Priority Lien Secured Parties under the Priority Lien Documents and in respect connection with loans provided by any of Qualified Indemnification Claims which the Priority Lien Secured Parties in fact result in any loss, cost, damage or expense connection with a DIP Financing on and after the date of the purchase and sale and the Second Lien Collateral Trustee becomes a successor agent thereunder.
(c) Such purchase of the Priority Lien Obligations (including reasonable attorneys’ fees unfunded commitments but excluding Excess Priority Lien Obligations) and legal expenses) any loans provided by any of the Secured Parties in connection with a DIP Financing shall be made on a pro rata basis among the Second Lien Purchasers giving notice to the Working Capital Facility Collateral Priority Lien Agent and Working Capital Facility Lenders; provided, that (A) in no event will of their interest to exercise the Interim Notes Collateral Agent or Interim Notes Noteholders, purchase option hereunder according to each such Second Lien Purchaser’s portion of the Second Lien Debt outstanding on the one hand, date of purchase or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, portion as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility ObligationsSecond Lien Purchasers may otherwise agree among themselves. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Priority Lien Agent in New York, New York, as the Working Capital Facility Collateral Priority Lien Agent may designate in writing to the Interim Notes Second Lien Collateral Agent and Pari Passu Collateral Agent Trustee for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur occurs if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account prior to 1:00 p.m. (12:00 noon, New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account later than 1:00 p.m. (12:00 noon, New York City time).
(d) Such purchase sale shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties as to the Working Capital Facility Indebtedness Priority Lien Obligations, the Collateral or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lendersany Priority Lien Secured Party, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall represent and warrantwarrant severally as to the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing then owing to it: (i) the amount that such applicable Priority Lien Secured Party owns such Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Working Capital Facility Indebtedness being purchased, Priority Lien Secured Parties in connection with a DIP Financing; and (ii) that such applicable Priority Lien Secured Party has the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens necessary corporate or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right other governing authority to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedsuch interests.
(e) The Working Capital Facility After such sale becomes effective, the outstanding letters of credit will remain enforceable against the issuers thereof and will remain secured by the Priority Liens upon the Collateral Agent agrees that it shall give in accordance with the Interim Notes Collateral Agent applicable provisions of the Priority Lien Documents as in effect at the time of such sale, and the Pari Passu Collateral Agent five (5) Business Days prior written notice issuers of its intention to commence the exercise letters of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send credit will remain entitled to the Working Capital Facility Collateral Agent the irrevocable notice benefit of the Interim Notes Priority Liens upon the Collateral Agent’s and sharing rights in the Pari Passu Collateral Agent’s intention proceeds thereof in accordance with the provisions of the Priority Lien Documents as in effect at the time of such sale, as fully as if the sale of the Priority Lien Debt had not been made, but only the Person or successor agent to exercise whom the purchase option given by Priority Liens are transferred in such sale will have the Working Capital Facility Collateral Agent right to foreclose upon or otherwise enforce the Priority Liens and only the Second Lien Purchasers in the sale will have the right to direct such Person or successor as to matters relating to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full enforcement of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralPriority Liens.
Appears in 1 contract
Purchase Option. (a) Upon Notwithstanding anything in this Agreement to the occurrence and during contrary, on or at any time after (i) the continuance commencement of an Event of Default Insolvency or an event of default under Liquidation Proceeding or (ii) the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf acceleration of the Interim Notes NoteholdersPriority Lien Obligations, and the Pari Passu Collateral Agent on behalf holders of the Pari Passu Lenders, after written demand by Subordinated Debt and each of their respective designated Affiliates (the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall “Subordinated Purchasers”) will have the right, at their sole option and election (but will not be obligated), at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect Priority Lien Agent, to purchase a portion from the Priority Lien Secured Parties (x) all (but not less than all) Priority Lien Obligations (including unfunded commitments) and (y) any loans provided by any of the Working Capital Facility Indebtedness from Priority Lien Secured Parties in connection with a DIP Financing that are outstanding on the Working Capital Facility Lendersdate of such purchase. Promptly following the receipt of such notice, ratably in proportion the Priority Lien Agent will deliver to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Subordinated Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt Trustee a statement of the information required amount of Priority Lien Debt, other Priority Lien Obligations and DIP Financing provided by any of the Priority Lien Secured Parties, if any, then outstanding and the amount of the cash collateral requested by the Priority Lien Agent to be delivered pursuant to clauses Section 3.06(b)(ii) below. The right to purchase provided for in this Section 3.06 will expire unless, within 10 Business Days after the receipt by the Subordinated Collateral Trustee of such notice from the Priority Lien Agent, the Subordinated Purchasers deliver to the Priority Lien Agent an irrevocable commitment of the Subordinated Purchasers to purchase (ax) all (but not less than all) of the Priority Lien Obligations (including unfunded commitments) and (by) any loans provided by any of the definition of “Qualified Indemnification Claim” Priority Lien Secured Parties in connection with a DIP Financing and to revoke otherwise complete such election to purchase such portion of on the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights terms set forth under this Section 5.63.06.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent Subordinated Purchasers in its respective Exercise Notice such irrevocable commitment (which shall not be less than five (5) Business Days nor more than 20 Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Priority Lien Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)irrevocable commitment), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, Subordinated Purchasers (x) all (but not less than all) Priority Lien Obligations (including unfunded commitments) and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (Ay) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless any loans provided by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events Priority Lien Secured Parties in connection with a DIP Financing that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon are outstanding on the date of such purchase sale, subject to any required approval of any Governmental Authority then in effect, if any, and only if on the date of such sale, the Interim Notes Collateral Priority Lien Agent and/or receives the Pari Passu Collateral Agent, as applicable, shall following:
(i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenderspayment, as the purchase price thereforefor all Priority Lien Obligations sold in such sale, of an amount equal to the full amount of (x) all Priority Lien Obligations (other than outstanding letters of credit as referred to in clause (ii) below) and (y) loans provided by any of the respective Purchasable Portion of all the Working Capital Facility Indebtedness Priority Lien Secured Parties in connection with a DIP Financing then outstanding and unpaid (including principal, interest, fees and expensesfees, including reasonable attorneys’ fees and legal expenses expenses, but excluding any early termination fee contingent indemnification obligations for which no claim or prepayment penalty demand for payment has been made at or premium payable pursuant prior to such time); provided that in the case of Hedging Obligations that constitute Priority Lien Obligations the Subordinated Purchasers shall cause the applicable agreements governing such Hedging Obligations to be assigned and novated or, if such agreements have been terminated, such purchase price shall include an amount equal to the Working Capital Facility Agreement sum of any unpaid amounts then due in respect of such Hedging Obligations, calculated using the methodology provided for under the applicable Hedging Obligation (e.g., loss, market quotations or close-out amount) and after giving effect to any other Working Capital Facility Document), netting arrangements;
(ii) furnish a cash collateral to the Working Capital Facility Collateral Agent deposit in such amounts amount as the Working Capital Facility Collateral Priority Lien Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with payment of any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit constituting Priority Lien Obligations that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent may become due and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor payable after such sale (but not in any event in an amount greater than 110% one hundred five percent (105%) of the amount then reasonably estimated by the Priority Lien Agent to be the aggregate undrawn face outstanding amount of such letters of creditcredit at such time), which cash collateral shall be (A) held by the Priority Lien Agent as security solely to reimburse the issuers of such letters of credit that become due and payable after such sale and any fees and expenses incurred in connection with such letters of credit and (B) returned to the Subordinated Purchasers (except as may otherwise be required by applicable law or any order of any court or other Governmental Authority) promptly after the expiration or termination from time to time of all payment contingencies affecting such letters of credit; and
(iii) agree to reimburse any agreements, documents or instruments which the Working Capital Facility Collateral Priority Lien Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as may reasonably request pursuant to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment Subordinated Purchasers in such sale expressly assume and (iv) agree to reimburse adopt all of the Working Capital Facility Collateral obligations of the Priority Lien Agent and Working Capital Facility Lenders the Priority Lien Secured Parties under the Priority Lien Documents and in respect connection with loans provided by any of Qualified Indemnification Claims which the Priority Lien Secured Parties in fact result connection with a DIP Financing on and after the date of the purchase and sale and the Subordinated Notes Trustee (or any other representative appointed by the holders of a majority in any loss, cost, damage or expense aggregate principal amount of the Subordinated Indenture Notes then outstanding) becomes a successor agent thereunder.
(c) Such purchase of the Priority Lien Obligations (including reasonable attorneys’ fees unfunded commitments) and legal expenses) any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing shall be made on a pro rata basis among the Subordinated Purchasers giving notice to the Working Capital Facility Collateral Priority Lien Agent and Working Capital Facility Lenders; provided, that (A) in no event will of their interest to exercise the Interim Notes Collateral Agent or Interim Notes Noteholders, purchase option hereunder according to each such Subordinated Purchaser’s portion of the Subordinated Debt outstanding on the one hand, date of purchase or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, portion as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility ObligationsSubordinated Purchasers may otherwise agree among themselves. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Priority Lien Agent in New York, New York, as the Working Capital Facility Collateral Priority Lien Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent Subordinated Purchasers for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur occurs if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Subordinated Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account prior to 1:00 p.m. (12:00 noon, New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Subordinated Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account later than 1:00 p.m. (12:00 noon, New York City time).
(d) Such purchase sale shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties as to the Working Capital Facility Indebtedness Priority Lien Obligations, the Collateral or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lendersany Priority Lien Secured Party, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall represent and warrantwarrant severally as to the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing then owing to it: (i) the amount that such applicable Priority Lien Secured Party owns such Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Working Capital Facility Indebtedness being purchased, Priority Lien Secured Parties in connection with a DIP Financing; and (ii) that such applicable Priority Lien Secured Party has the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens necessary corporate or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right other governing authority to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedsuch interests.
(e) The Working Capital Facility After such sale becomes effective, the outstanding letters of credit will remain enforceable against the issuers thereof and will remain secured by the Priority Liens upon the Collateral Agent agrees that it shall give in accordance with the Interim Notes Collateral Agent applicable provisions of the Priority Lien Documents as in effect at the time of such sale, and the Pari Passu Collateral Agent five (5) Business Days prior written notice issuers of its intention to commence the exercise letters of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send credit will remain entitled to the Working Capital Facility Collateral Agent the irrevocable notice benefit of the Interim Notes Priority Liens upon the Collateral Agent’s and sharing rights in the Pari Passu Collateral Agent’s intention proceeds thereof in accordance with the provisions of the Priority Lien Documents as in effect at the time of such sale, as fully as if the sale of the Priority Lien Debt had not been made, but only the Person or successor agent to exercise whom the purchase option given by Priority Liens are transferred in such sale will have the Working Capital Facility Collateral Agent right to foreclose upon or otherwise enforce the Priority Liens and only the Subordinated Purchasers in the sale will have the right to direct such Person or successor as to matters relating to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full enforcement of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralPriority Liens.
Appears in 1 contract
Sources: Intercreditor and Subordination Agreement (Sandridge Energy Inc)
Purchase Option. (ai) Upon The Aimco Agent agrees that it will give the occurrence and during Holdings Agent written notice (the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived “Enforcement Notice”) within thirty (30) days, the Interim Notes Collateral Agent on behalf five Business Days after acceleration of the Interim Notes NoteholdersAimco Lien Indebtedness or commencing any Exercise of Secured Creditor Remedies with respect to Collateral (which notice shall be effective for all Exercises of Secured Creditor Remedies taken after the date of such notice so long as the Aimco Agent is diligently pursuing in good faith the exercise of its default or enforcement rights or remedies against, and the Pari Passu Collateral Agent or diligently attempting in good faith to vacate any stay of enforcement rights of its senior Liens on behalf a material portion of the Pari Passu LendersCollateral, after written demand by the Trustee or the Interim Notes Collateral Agentincluding, on the one handwithout limitation, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment all Exercise of all Interim Notes Obligations or Pari Passu Obligations, as applicable, Secured Creditor Remedies identified in such notice). Any Holdings Lender shall have the option at any time upon five (5) Business Days’ prior option, by irrevocable written notice in the form attached hereto as Annex A (the “Purchase Notice”) delivered by the Holdings Agent to the Working Capital Facility Collateral Aimco Agent to elect no later than thirty days after receipt by the Holdings Agent of the Enforcement Notice, to purchase a portion all of the Working Capital Facility Aimco Lien Indebtedness from the Working Capital Facility LendersAimco Lender and shall be irrevocably obligated upon delivery of such notice to consummate such purchase within the time periods specified below; provided that, ratably if any Holdings Lender identified in proportion the Purchase Notice is a Person other than HSH Nordbank, such Person shall be sufficiently creditworthy to consummate the outstanding Obligations of each outstanding Series of Secured Debt purchase as reasonably determined by the Aimco Agent (in each caseHSH Nordbank and any such other creditworthy Person, the a “Purchasable PortionPermitted Holdings Lender”). Such notice (an “Exercise Notice”) If the Holdings Agent so delivers a Purchase Notice from Permitted Holdings Lenders, unless the Interim Notes Collateral Holdings Agent or Pari Passu Collateral Agentotherwise directs, as applicable, to the Working Capital Facility Collateral Aimco Agent shall be irrevocable; terminate any existing Exercise of Secured Creditor Remedies and shall not take any further Exercise of Secured Creditor Remedies, provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, Purchase (as applicable, defined below) shall have been consummated on the right within ten date specified in the Purchase Notice in accordance with this clause (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6g).
(bii) On the date specified by the Interim Notes Collateral Holdings Agent or Pari Passu Collateral Agent and each Permitted Holdings Lender in its respective Exercise the Purchase Notice (which shall be a Business Day not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Noticesixty days, and (ii) ten (10) days after receipt by the Interim Notes Collateral Aimco Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)Purchase Notice), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell Aimco Lender shall, subject to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no required approval of any court or other regulatory or governmental authority is required for such salethen in effect, sell to the Permitted Holdings Lenders electing to purchase pursuant to clause (g)(i) (the “Purchasing Parties”), and the Purchasing Parties shall purchase (the “Purchase”) from the Aimco Lender, the Aimco Lien Indebtedness; provided that the Aimco Lien Indebtedness purchased shall not include any rights of the Aimco Lender or the Aimco Agent with respect to indemnification and other obligations of the Borrower and the Borrower’s subsidiaries under the Aimco Loan Documents that are expressly stated to survive the termination of the Aimco Loan Documents (the “Surviving Obligations”). Following the delivery of a Purchase Notice, the Purchase by the Purchasing Parties may be effected through an Affiliate, subsidiary or other designee, provided that the obligation to consummate the Purchase in accordance with this Section 2(g), including the payment of the Purchase Price and other amounts as set forth in this Section, shall remain the irrevocable obligation of the Purchasing Parties.
(ciii) Upon Without limiting the obligations of Aimco Holdco, the Borrower and the Borrower’s subsidiaries under the Aimco Loan Documents to the Aimco Agent and the Aimco Lender with respect to the Surviving Obligations (which shall not be transferred in connection with the Purchase), on the date of such purchase and salethe Purchase, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Purchasing Parties shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, Aimco Lender as the purchase price therefore, (the “Purchase Price”) therefor the full amount of the respective Purchasable Portion of all the Working Capital Facility Aimco Lien Indebtedness then outstanding and unpaid (including principal, interest, fees, breakage costs, attorneys’ fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant and, if prior to the Working Capital Facility Agreement or acceleration of the Aimco Lien Indebtedness, any other Working Capital Facility Documentpremium which would be due and owing with respect to any payment of the principal by any Obligor on the date of the Purchase), (ii) furnish cash collateral agree to reimburse the Working Capital Facility Collateral Aimco Lender and the Aimco Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent for any loss, cost, damage or expense (including attorneys’ fees and Working Capital Facility Lenders expenses) in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent fees, costs or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged expenses related to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, Aimco Lien Indebtedness and/or as to which the Working Capital Facility Collateral Aimco Lender or Aimco Agent or Working Capital Facility Lenders has have not yet received final payment and (iv) agree agree, after written request from the Aimco Agent, to reimburse the Working Capital Facility Collateral Aimco Agent and Working Capital Facility Lenders the Aimco Lender in respect of Qualified Indemnification Claims indemnification obligations of the Borrower and the Borrower’s subsidiaries under the Aimco Loan Documents as to matters or circumstances known to the Purchasing Parties at the time of the Purchase which in fact could reasonably be expected to result in any loss, cost, damage or expense (including reasonable attorneys’ fees to any of the Aimco Agent or the Aimco Lender and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; providedthat are not Surviving Obligations, that (A) provided that, in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, shall any Purchasing Party have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of Purchasing Parties.
(1iv) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral The Purchase Price shall be remitted by wire transfer in federal immediately available funds to such bank account of the Working Capital Facility Collateral Aimco Agent in New York, New York, as the Working Capital Facility Collateral Agent may it shall designate in writing to the Interim Notes Collateral Purchasing Parties. The Aimco Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior shall, promptly following its receipt thereof, distribute the amounts received by it in respect of the Purchase Price to the date on which such amounts are Aimco Lender and the Aimco Agent in accordance with the Aimco Loan Documents. Interest to be so remitted. Interest included in the Purchase Price shall be calculated to but excluding the Business Day day on which such purchase and sale shall occur the Purchase occurs if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Purchasing Parties to the bank account designated by the Working Capital Facility Collateral Aimco Agent are received in such bank account prior to 1:00 p.m. (12:00 Noon, New York City time) , and such interest shall be calculated to and including such Business Day day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Purchasing Parties to the bank account designated by the Working Capital Facility Collateral Aimco Agent are received in such bank account later than 1:00 p.m. (12:00 Noon, New York City time).
(dv) Such purchase The Purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Aimco Agent and Working Capital Facility Lenders or the Aimco Lender as to the Working Capital Facility Indebtedness Aimco Lien Indebtedness, the Collateral or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility LendersAimco Lender and the Aimco Agent, except that the Working Capital Facility Collateral Aimco Lender and Aimco Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Aimco Lien Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Aimco Lender and the Aimco Agent and Working Capital Facility Lenders own the Working Capital Facility Aimco Lien Indebtedness free and clear of any Liens liens, adverse claims or interests, or other encumbrances and (iii) that the Working Capital Facility Collateral Aimco Lender and the Aimco Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Aimco Lien Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 1 contract
Purchase Option. (a1) Upon the occurrence and during of the continuance first to occur of (i) the Exercise of Secured Creditor Remedies by the ABL Agent in respect of all or a material portion of the Collateral, (ii) the commencement of an Event Insolvency Proceeding against any Notes Credit Party, (iii) any ABL Default, (iv) any action is taken by the ABL Secured Parties to accelerate the maturity of Default any indebtedness or an event of default other obligations owing under the Working Capital Facility ABL Documents or to terminate or suspend commitments under the ABL Documents, or (v) the failure of the ABL Secured Parties to honor a valid borrowing request from the ABL Borrowers that is not cured or waived within thirty satisfies the conditions for borrowing under the ABL Documents for three (303) daysconsecutive Business Days (each such event, a “Controlling Notes Purchase Option Triggering Event”), holders of Notes Obligations represented by the Interim Controlling Notes Collateral Agent on behalf (such holders referred to herein as the “Controlling Noteholders”), shall have the option, but not the obligation, to purchase all, but not less than all, of the Interim Notes NoteholdersABL Obligations owing to the ABL Secured Parties, from the ABL Secured Parties, and the Pari Passu Collateral Agent on behalf assume all, but not less than all, of the Pari Passu Lendersthen existing funding and other commitments under the ABL Documents. In order to exercise such option, after written demand the Controlling Noteholders (including by acting through the Trustee or the Interim Controlling Notes Collateral Agent, on who shall give such notice only at the one hand, and/or direction of the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, Controlling Noteholders) shall have the option at any time upon five (5) Business Days’ prior give written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Controlling Notes Purchase Notice”) from to ABL Agent no later than the Interim Notes Collateral Agent tenth (10th) day (or Pari Passu Collateral Agent, such later date as applicable, may be consented to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral ABL Agent, in its good faith judgmentsole discretion) after the commencement of the applicable Controlling Notes Purchase Option Triggering Event. A Controlling Notes Purchase Notice, deems such action once delivered, shall be irrevocable and shall constitute an absolute, unconditional and irrevocable commitment by the Controlling Noteholders, to be necessary to preserve or protect purchase all, but not less than all, of the Shared CollateralABL Obligations, and assume all, but not less than all, of the then existing funding and other commitments under the ABL Documents by the participating Notes Claimholders.
Appears in 1 contract
Purchase Option. (a) Upon Subject to the occurrence terms of this Section 18, the Senior Lenders hereby grant to the Subordinated Lender the option (the "Purchase Option") to purchase all of the Senior Debt from the Senior Lenders at a price (the "Purchase Price") equal to the sum of (i) all amounts outstanding and/or due in connection with the Term Loan Agreement and during the continuance Assigned Revolving Loan Agreement, all as of an Event the date of Default or an event the payment of default the Purchase Price, including any principal outstanding under the Working Capital Facility Documents that is not cured or waived within thirty Term Loan Agreement and the Assigned Revolving Loan Agreement, (30ii) daysany interest, reasonable fees (including audit fees, attorneys fees, etc.), other reasonable expenses and all other Obligations under, and as defined in, the Interim Notes Collateral Agent on behalf of Term Loan Agreement and the Interim Notes NoteholdersAssigned Revolving Loan Agreement, and (iii) an amount equal to any principal payments made to the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand Senior Lenders by the Trustee or Credit Parties within the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) 90 days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration Purchase Option Closing Date; provided that the amount of such ten-day period. Neither any Termination Fee or other prepayment premium or yield maintenance fee due under the Existing Notes Collateral Agent nor any Existing Notes Noteholder Term Loan Agreement shall have any rights under this Section 5.6be excluded from the Purchase Price.
(b) On The Subordinated Lender may exercise the date specified Purchase Option upon or during (i) the acceleration of the Senior Debt, so long as such acceleration is not related to an Event of Default resulting from the Subordinated Lender's failure to comply with Section 20 hereof; (ii) an Insolvency Proceeding; (iii) a PIK Exercise Period; provided that if the Purchase Option set forth in subsection (b)(iii) hereof is being financed by the Interim Notes Collateral Subordinated Lender, the Subordinated Lender shall first give the Senior Lenders the right to refinance the Senior Debt on the same terms and conditions being offered by the Subordinated Lender's funding source; or (iv) as provided in Section 20 hereof.
(c) Upon the Subordinated Lender's election to exercise the Purchase Option, the Subordinated Lender shall deliver irrevocable written notice (the "Exercise Notice") that it intends to exercise the Purchase Option. The Subordinated Lender shall (i) tender payment of the Purchase Price in cash in immediately available funds and (ii) deliver an Assignment Agreement executed by the Subordinated Lender to the Agent or Pari Passu Collateral Agent in its respective Exercise Notice not later than the tenth (which shall not be less than five (510th) Business DaysDay after the delivery of the Exercise Notice. The Subordinated Lender shall have no right to purchase, nor more and the Senior Lenders shall have no obligation to sell, the Senior Debt unless the Agent shall have timely received (x) an Exercise Notice, (y) the Purchase Price in immediately available funds, and (z) an Assignment Agreement executed by the Subordinated Lender.
(d) The Credit Parties and the Subordinated Lender shall indemnify the Senior Lenders for all third party fees and expenses incurred by the Senior Lenders before the Purchase Option Closing Date, to the extent invoices relating thereto have not been received or paid by such date and a list of such third party fees and expenses is provided to the Subordinated Lender not later than the later tenth (10th) Business Day after the delivery of the Exercise Notice. The Senior Lenders shall make any such claims for indemnification as soon as practicable following the Purchase Option Closing Date and shall make any such claim in a writing accompanied by the applicable third party invoices. The Senior Lenders will use their best efforts to cause third parties to promptly remit invoices for fees and expenses to the Senior Lenders.
(e) The amount of the Purchase Price attributed to Section 18(a)(iii) hereof shall be placed into an escrow account (the "Escrow Account") with an escrow agent ("Escrow Agent") reasonably acceptable to the Senior Lenders. The funds in the Escrow Account shall be held by the Escrow Agent until the earlier of (i) thirty such time as the Senior Lenders are required by applicable law to pay the amount of the Purchase Price attributed to Section 18(a)(iii) hereof to the estate of the Credit Parties in any Insolvency Proceeding which amounts shall be disbursed from the Escrow Account, or (30ii) 95 days after the receipt by date the Working Capital Facility Collateral Agent of Senior Lenders received any such principal payment most immediately preceding the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Purchase Option Closing Date”)), at which time the Working Capital Facility Collateral Agent and Working Capital Facility Lenders funds in the Escrow Account shall sell be disbursed from the Escrow Account to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Subordinated Lender. The Senior Lenders, the respective Purchasable Portion; providedSubordinated Lender and the Escrow Agent shall enter into an escrow agreement evidencing the forgoing. At all times prior to Purchase Option Closing Date, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Senior Lenders shall retain all rights be free to be indemnified administer the credit (which shall include, without limitation, incurring reasonable ordinary course expenses), lend or held harmless by any Obligor refuse to lend, adjust advance rates, institute or release reserves, and otherwise act or refuse to act in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to Term Loan Agreement and the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any TrusteeAssigned Revolving Loan Agreement, the Interim Notes Collateral Agentother Loan Documents, this Agreement and applicable law. During the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon period between the date of such purchase receipt of the Exercise Notice and salethe Purchase Option Closing Date, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Senior Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking liquidate any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralCredit Parties' assets.
Appears in 1 contract
Sources: Subordination Agreement (Easy Gardener Products LTD)
Purchase Option. Without prejudice to the enforcement and exercise of the First Priority Secured Parties’ remedies, the First Priority Secured Parties agree that following (a) Upon the occurrence and during the continuance acceleration of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf any of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of First Priority Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions applicable First Priority Secured Debt Documents, (b) a payment default under any First Priority Secured Debt document at the maturity thereof that has not been cured or events that occurred or did not occur prior to waived by the closing First Priority Secured Parties within sixty (60) days of the occurrence thereof or (c) the commencement of an Insolvency or Liquidation Proceeding in respect of any Obligor (each, a “Purchase Event”), notwithstanding any provision in any Secured Debt Document, within thirty (30) days of the sale Purchase Event, one or more of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security thereforSecured Parties may request, and the First Priority Secured Parties hereby are deemed to offer (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result by virtue of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a applicable First Priority Secured Debt Representative being party to this Agreement) the Notes Secured Parties the option, no approval to purchase all, but not less than all, of the aggregate principal amount of outstanding First Priority Secured Debt outstanding at the time of purchase at par, plus accrued and unpaid interest ,plus, in respect of the Convertible Debentures only, any court premium that is due and payable on such Convertible Debentures, payable in immediately available funds without warranty or other regulatory representation or governmental authority is recourse (except for representations and warranties required for such sale.
(c) Upon to be made by assigning lenders pursuant to a customary assignment agreement); provided that, in the date case of such purchase and salethe AerCap Secured Obligations, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Secured Parties shall (i) be required to pay to the Working Capital Facility Collateral Agent, for First Priority Secured Debt Representative in respect of the benefit AerCap Secured Obligations an amount in cash in U.S. dollars that is sufficient to discharge in full all of Working Capital Facility Lenders, as the AerCap Secured Obligations rather than being required to purchase price thereforesuch AerCap Secured Obligations. If such right is exercised, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses parties shall endeavor to close promptly thereafter but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% within ten (10) Business Days of the aggregate undrawn face amount request. If one or more of the Notes Secured Parties exercise such letters purchase right, it shall be exercised pursuant to documentation mutually acceptable to each of creditthe applicable First Priority Secured Debt Representatives and the Trustee (as directed by the Notes Secured Parties). If none of the Notes Secured Parties exercise such right within the time periods set forth above, (iii) agree the First Priority Secured Parties shall have no further obligations pursuant to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability this Section 5.04 for such amounts Purchase Event and may take any further actions in excess of accordance with the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees First Priority Secured Debt Documents and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including . The Issuer and each First Priority Secured Debt Representative hereby consents to any assignment pursuant to this Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses 5.04 to the extent caused by it has a consent or resulting from similar approval right under the gross negligence or willful misconduct assignment provisions of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order relevant First Priority Secured Debt Documents. The provisions of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant this Section 5.04 are referred to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, herein as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time)“Buy-Out Right.
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.”
Appears in 1 contract
Sources: Intercreditor, Collateral Sharing and Accounts Agreement (Azul Sa)
Purchase Option. (a) Upon Without prejudice to the occurrence and during enforcement of the continuance remedies of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) daysRevolving Credit Claimholders, the Interim Notes Revolving Credit Claimholders agree that, at any time following the date on which the Required Revolving Lenders (or the Revolving Credit Agent on their behalf) have declared all or any part of the Revolving Credit Obligations to be due and payable prior to their stated maturity in accordance with the Revolving Credit Agreement, the Revolving Credit Claimholders will offer the Note Claimholders the option to purchase the aggregate amount of outstanding Revolving Credit Obligations at par (but without regard to any prepayment penalty or premium), without warranty or representation (other than that such lenders own the claims being sold, free and clear of liens or encumbrances created by them, but without regard to ultimate enforceability) or recourse. The Note Claimholders shall irrevocably accept or reject such offer within ten business days after the receipt thereof and the parties shall endeavor to close promptly (but in any event within twenty business days) following communication of any such acceptance. If the Note Claimholders accept such offer, it shall be exercised pursuant to an assignment agreement in the form attached to the Revolving Credit Agreement. If the Note Claimholders reject such offer, the Revolving Credit Claimholders shall have no further obligations pursuant to this Section and may take any further actions in their sole discretion in accordance with the Revolving Credit Documents and this Agreement. The Note Claimholders shall have no claim against any Revolving Credit Claimholder under this Section 8.17 for any action taken by any Revolving Credit Claimholder with respect to the Revolving Credit Obligations or any Collateral therefor prior to the exercise of the purchase of the Revolving Credit Obligations. As a condition to the effectuation of the purchase contemplated by this Section 8.17, the Trustee and Collateral Agent on behalf of the Interim Notes Noteholders, Note Claimholders shall provide a full and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the complete release (other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase a breach of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit above referenced representations that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders lenders own the Working Capital Facility Indebtedness claims being sold, free and clear of any Liens liens or encumbrances and (iiicreated by them, but without regard to ultimate enforceability) of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have Revolving Credit Claimholders in such form as the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Revolving Credit Agent shall send prescribe, releasing any claims, to the Working Capital Facility Collateral Agent the irrevocable notice extent related to or arising out of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing DateRevolving Credit Obligations. Nothing contained in this Section 5.6(e) 8.17 shall restrict preclude the Revolving Credit Claimholders from selling or prohibit otherwise disposing of the Working Capital Facility Collateral Agent from taking action Revolving Credit Obligations, or any portion thereof, to the extent any third party, provided that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action third party agrees to be necessary to preserve or protect the Shared Collateralbound by this Section 8.17.
Appears in 1 contract
Purchase Option. (ai) Upon If Administrative Agent shall notify the occurrence and during ABL Term Loan Agent of its intention to (by itself or at the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf direction of the Interim Notes NoteholdersRequired Lenders) sell, and the Pari Passu Collateral Agent on behalf lease or otherwise dispose of all or substantially all of the Pari Passu Lenders, after written demand Collateral whether by private or public sale in accordance with the immediately preceding paragraph; provided that any notice from Administrative Agent to the ABL Term Loan Agent of the Administrative Agent’s intention to conduct such a sale shall be delivered by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, Administrative Agent to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral ABL Term Loan Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business DaysDays prior to the commencement of any such sale (the foregoing event is referred to herein as a, nor more “Purchase Option Event”), the ABL Term Lenders shall have the opportunity to purchase all (but not less than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (ball) of the definition of Obligations (other than the ABL Term Obligations); provided that such option shall expire if the applicable ABL Term Lenders fail to deliver a written notice (a “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing DateRevolving Purchase Notice”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell ) to the Interim Notes Collateral Administrative Agent and/or within five (5) Business Days following the Pari Passu Collateral Agentfirst date the ABL Term Loan Agent obtains knowledge of the occurrence of a Purchase Option Event, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent which Revolving Purchase Notice shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) be signed by the Working Capital Facility Collateral Agent applicable ABL Term Lenders committing to such purchase (the “Revolving Purchasing Creditors”) and Working Capital Facility Lenders shall retain all rights indicate the percentage of the Obligations (other than the ABL Term Obligations) to be indemnified or held harmless purchased by any Obligor in accordance with the terms each Revolving Purchasing Creditor (which aggregate commitments must add up to one hundred percent (100%) of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to Obligations (other than the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, ABL Term Obligations)) and (B) nothing confirm that the offer contained in clause (A) above shall restrict or limit therein is irrevocable. Upon receipt of such Revolving Purchase Notice by the indemnification rights of any Trustee, the Interim Notes Collateral Administrative Agent, the Interim Notes Noteholders, Revolving Purchasing Creditors shall have from the Pari Passu Collateral date of delivery thereof to and including the date that is five (5) Business Days after the Revolving Purchase Notice was received by the Administrative Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result purchase all (but not less than all) of the purchase of Obligations (other than the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
ABL Term Obligations) (c) Upon the date of such purchase and salepurchase, the Interim Notes Collateral “Revolving Purchase Date”).
(ii) On the Revolving Purchase Date, the Administrative Agent and/or and the Pari Passu Collateral AgentRevolving Lenders shall, as applicablesubject to any required approval of any Governmental Authority, if any, sell to the Revolving Purchasing Creditors all (but not less than all) of the Obligations (other than the ABL Term Obligations). On such Revolving Purchase Date, the Revolving Purchasing Creditors shall (i) pay to the Working Capital Facility Collateral Administrative Agent, for the benefit of Working Capital Facility Lendersthe Credit Parties (other than the ABL Term Credit Parties), as directed by the purchase price thereforeAdministrative Agent, in immediately available funds the full amount of the respective Purchasable Portion (at par) of all Obligations (other than the Working Capital Facility Indebtedness then outstanding ABL Term Obligations) together with all accrued and unpaid (including principalinterest and fees thereon, interest, fees all in the amounts specified by the Administrative Agent and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee determined in good faith in accordance with the Loan Documents or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document)applicable documents, (ii) furnish such amount of cash collateral to the Working Capital Facility Collateral Agent in such amounts immediately available funds as the Working Capital Facility Collateral Administrative Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Credit Parties (other than the ABL Term Credit Parties) on terms reasonably satisfactory to the Administrative Agent and Working Capital Facility Lenders in connection with any issued (x) asserted indemnification claims, and outstanding letters (y) all Obligations (other than the ABL Term Obligations) in respect of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters relating to Letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (Credit but not in any event in an amount greater than 110103% of the aggregate undrawn face amount of such letters of credit)thereof, and (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Credit Parties (other than the ABL Term Credit Parties) for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) resulting from the granting of provisional credit for any checks, wire or ACH transfers that are reversed or not final or other payments provisionally credited to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims Obligations (other than the Qualified Indemnification Claims), ABL Term Obligations) and as to which the Administrative Agent and the other Credit Parties (Cother than the ABL Term Credit Parties) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct not yet received final payment as of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility ObligationsRevolving Purchase Date. Such purchase price and cash collateral shall be remitted by wire transfer in federal immediately available funds to such bank account of the Working Capital Facility Collateral Administrative Agent in New York, New York, (for the benefit of the applicable Credit Parties) as the Working Capital Facility Collateral Administrative Agent may designate shall have specified in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedABL Term Loan Agent. Interest and fees shall be calculated to but excluding the Business Day on which such purchase and sale shall occur Revolving Purchase Date if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, applicable Revolving Purchasing Creditors to the bank account designated by the Working Capital Facility Collateral Administrative Agent are received in such bank account prior to 1:00 p.m. (New York City time) 11:00 a.m, and interest shall be calculated to and including such Business Day Revolving Purchase Date if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Revolving Purchasing Creditors to the bank account designated by the Working Capital Facility Collateral Administrative Agent are received in such bank account later after 11:00 a.m. Notwithstanding anything to the contrary contained in the Loan Documents, the Loan Parties hereby consent to and approve the assignment of the Obligations (other than 1:00 p.m. (New York City time)the ABL Term Obligations) contemplated by this Section.
(diii) Such Any purchase shall pursuant to the purchase option described in this Section shall, except as provided below, be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Administrative Agent and Working Capital Facility Lenders or the other Credit Parties (other than the ABL Term Credit Parties) as to the Working Capital Facility Indebtedness Obligations, the Collateral or otherwise otherwise, and without recourse to the Working Capital Facility Administrative Agent and the other Credit Parties (other than the ABL Term Credit Parties) as to the Obligations, the Collateral Agent or Working Capital Facility Lendersotherwise, except that the Working Capital Facility Collateral Administrative Agent and Working Capital Facility Lenders each of the other Credit Parties (other than the ABL Term Credit Parties), as to itself only, shall represent and warrant: warrant only as to (i) the principal amount of the Working Capital Facility Indebtedness Obligations being purchasedsold by it, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of such Person has not created any Liens Lien on, or encumbrances sold any participation in, any Obligations being sold by it, and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have that such Person has the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedObligations being assigned by it.
(eiv) The Working Capital Facility In connection with any purchase of Obligations (other than the ABL Term Obligations) pursuant to this Section, each Credit Party (other than the ABL Term Credit Parties) agrees to enter into and deliver to the Revolving Purchasing Creditors on the Revolving Purchase Date, as a condition to closing, an assignment agreement substantially in the form of Exhibit A to this Agreement or any other form approved by the Administrative Agent and, at the expense of the Loan Parties, each of the Credit Parties (other than the ABL Term Credit Parties) shall deliver all possessory Collateral (if any), together with any necessary endorsements and other documents (including any applicable stock powers or note powers), then in such Credit Party’s possession or in the possession of its agent or bailee, or turn over control as to any pledged Collateral, deposit accounts or securities accounts of which such Credit Party or its agent or bailee then has control, as the case may be, to the ABL Term Loan Agent agrees that it shall give to act as the Interim Notes successor Administrative Agent and Collateral Agent and otherwise take such actions as may be reasonably appropriate to effect an orderly transition to the Pari Passu ABL Term Loan Agent to act as the successor Administrative Agent and Collateral Agent five Agent. Upon the consummation of the purchase of the Obligations (5other than the ABL Term Obligations) Business Days prior written notice of its intention pursuant to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day periodthis Section, the Interim Notes Collateral Administrative Agent and the Pari Passu Collateral Agent shall send be deemed to have resigned as an “agent” or “administrative agent” or “collateral agent” (or any similar role) for the Working Capital Facility Credit Parties, under the Loan Documents; provided the Administrative Agent and Collateral Agent the irrevocable notice (and all other agents under this Agreement) shall be entitled to all of the Interim Notes Collateral Agent’s rights and benefits of a former “agent” or “administrative agent” or “collateral agent” under this Agreement.
(v) Notwithstanding the Pari Passu Collateral Agent’s intention to exercise foregoing purchase of the purchase option given Obligations (other than the ABL Term Obligations) by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6Revolving Purchasing Creditors, the Working Capital Facility Collateral Agent Credit Parties (other than the ABL Term Credit Parties) shall not commence retain those contingent indemnification obligations and other obligations under the Loan Documents which by their terms would survive any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full repayment of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralObligations.
Appears in 1 contract
Sources: Senior Secured, Super Priority Debtor in Possession Credit Agreement (Pier 1 Imports Inc/De)
Purchase Option. (ai) Upon At any time from and after the occurrence and during the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) daysa Trigger Event, the Interim Notes Collateral Senior Administrative Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the continuing option at any time upon five (5) Business Days’ prior the “Purchase Option”), but not the obligation, exercisable by delivery of an irrevocable written notice to the Working Capital Facility Collateral Senior Administrative Agent to elect to purchase (a portion “Purchase Notice”), as representative of the Working Capital Facility Indebtedness from the Working Capital Facility First Lien Lenders, ratably to acquire for the benefit of the Committed Term B Lenders all (but not less than all) of the right, title, and interest of the First Lien Lenders in proportion and to the outstanding First Lien Obligations of each outstanding Series of Secured Debt (in each case, and the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocableLoan Documents; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses provided that:
(a) and the Senior Administrative Agent shall have received written instructions from one or more of the Term B Lenders (the “Committed Term B Lenders”) to consummate the Purchase Option;
(b) the Senior Administrative Agent shall have received the full amount of the definition of “Qualified Indemnification Claim” Trigger Purchase Price from the Committed Term B Lenders;
(c) the Senior Administrative Agent shall have been indemnified, in form and substance satisfactory to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; providedSenior Administrative Agent, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6Committed Term B Lenders.
(bii) Each First Lien Lender hereby agrees to sell, transfer and assign all of its interest in the First Lien Obligations and the Loan Documents upon exercise of the Purchase Option in accordance with this Agreement. Each First Lien Lender agrees to execute and deliver a countersigned copy of an Assignment and Acceptance Agreement for 100% of the First Lien Loan Obligations held by such First Lien Lender to effectuate the sale pursuant to the Purchase Option. The sale shall be without representation and warranty of any kind other than those set forth in the Assignment and Acceptance Agreement and subject only to receipt of such First Lien Lender’s Pro Rata Share of the Trigger Purchase Price.
(iii) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Senior Administrative Agent in its respective Exercise the Purchase Notice (which date shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days 5 Business Days after the receipt by the Working Capital Facility Collateral Senior Administrative Agent of the Exercise Purchase Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility First Lien Lenders shall sell to the Interim Notes Collateral Agent and/or Senior Administrative Agent, for the Pari Passu Collateral Agentbenefit of the Committed Term B Lenders, and the Interim Notes Collateral Agent and/or Senior Administrative Agent, for the Pari Passu Collateral Agent benefit of the Committed Term B Lenders, shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility First Lien Lenders, the respective Purchasable Portion; providedFirst Lien Obligations:
(iv) From and after the date that the Senior Administrative Agent, that (A) on behalf of the Working Capital Facility Collateral Committed Term B Lenders, delivers a Purchase Notice, the Senior Administrative Agent and Working Capital Facility the First Lien Lenders shall retain all rights not take any Lien Enforcement Action (to be indemnified or held harmless by any Obligor the extent such action has not been previously taken in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the this Agreement). A purchase and sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders First Lien Obligations pursuant to this Section 5.3(f) may be initiated at any time after a Trigger Event has occurred and is continuing and shall close within 5 Business Days after receipt by the Working Capital Facility Documents assumed as a result Senior Administrative Agent of the purchase Purchase Notice. The Senior Administrative Agent shall receive payment in full of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, Purchase Price as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required provided for herein within such sale5 Business Day period.
(cv) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Senior Administrative Agent, for the benefit of Working Capital Facility the Committed Term B Lenders, as shall pay in cash to each First Lien Lender, an amount equal to such First Lien Lender’s Pro Rata Share of the purchase price thereforeTrigger Purchase Price.
(vi) The Committed Term B Lenders agree to pay to the Senior Administrative Agent, for the benefit of the First Lien Lenders, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium Term A Loan Applicable Prepayment Premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral Loan Documents as in effect on the date hereof within 3 Business Days to the Working Capital Facility Collateral Agent in such amounts as extent actually received by the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Committed Term B Lenders in connection with any issued and outstanding letters of credit provided by cash within 45 days following the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to date on which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Committed Term B Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Senior Administrative Agent or Pari Passu Lenderson their behalf, on other other hand, have any liability for such amounts in excess of pay the cash proceeds of Shared Collateral Purchase Price. Any Term A Loan Applicable Prepayment Premium received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Committed Term B Lenders thereafter shall not be paid to the Senior Administrative Agent or the Working Capital Facility First Lien Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over but shall instead belong to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, Committed Term B Lenders.
(Bvii) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral The Purchase Price shall be remitted by wire transfer in federal funds to such bank account as the Senior Administrative Agent, on behalf of the Working Capital Facility Collateral Agent in New YorkFirst Lien Lenders, New York, as the Working Capital Facility Collateral Agent may shall designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are Purchase Price is received in such bank account prior to 1:00 p.m. 2:00 p.m., (New York City time) ), and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are Purchase Price is received in such bank account later than 1:00 2:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 1 contract
Purchase Option. (a) Upon Without prejudice to the enforcement of the remedies of the Senior Agent and the other Senior Claimholders, at any time during the twenty (20) day period following the occurrence and during the continuance of an Event of Default a Triggering Event, then, in any such case, any one or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf more of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee Subordinated Claimholders (acting in their individual capacity or the Interim Notes Collateral Agent, on the through one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, more affiliates) shall have the option at any time right, but not the obligation (each Subordinated Claimholder having a ratable right to make the purchase, with each Subordinated Claimholder’s right to purchase being automatically proportionately increased by the amount not purchased by another Subordinated Claimholder), upon five ten (510) Business Days’ prior advance written notice to the Working Capital Facility Collateral Agent to elect to purchase from (or on behalf of) such Subordinated Claimholders (a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Purchase Notice”) to the Senior Agent, for the benefit of the Senior Claimholders, to acquire from the Interim Notes Collateral Agent or Pari Passu Collateral AgentSenior Claimholders all (but not less than all) of the right, as applicabletitle, and interest of the Senior Claimholders in and to the Working Capital Facility Collateral Agent Senior Obligations and the Senior Loan Documents. The Purchase Notice, if given, shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by in the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Purchase Notice (which shall not be less more than five ten (510) Business Days, nor more than the later of (i) thirty (30) days Days after the receipt by the Working Capital Facility Collateral Senior Agent of the Exercise Purchase Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Senior Claimholders shall sell to the Interim Notes Collateral Agent and/or purchasing Subordinated Claimholders (the Pari Passu Collateral Agent, “Purchasing Subordinated Claimholders”) and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent Purchasing Subordinated Claimholders shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility LendersSenior Claimholders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleSenior Obligations.
(c) Upon On the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Purchasing Subordinated Claimholders shall (i1) pay to the Working Capital Facility Collateral Senior Agent, for the benefit of Working Capital Facility Lendersthe Senior Claimholders, as the purchase price therefore, therefor the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness Senior Obligations (other than Senior Obligations cash collateralized in accordance with clause (c)(2) below) then outstanding and unpaid (including principalunpaid, interestincluding, fees and expensesfor the avoidance of doubt, including reasonable attorneys’ fees and legal expenses but excluding any prepayment premium or early termination fee or prepayment penalty or premium and any amounts payable pursuant to Section 2.10(e) of the Working Capital Facility Senior Credit Agreement, if the Senior Obligations are prepaid in full and all commitments under the Senior Credit Agreement or any other Working Capital Facility Document)are terminated in full at such time, (ii2) furnish cash collateral to the Working Capital Facility Collateral Senior Agent in such amounts as the Working Capital Facility Collateral Senior Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Senior Agent and Working Capital Facility Lenders the Senior Claimholders in connection with any issued and outstanding letters Letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit)Credit, (iii3) agree to reimburse the Working Capital Facility Collateral Senior Agent and Working Capital Facility Lenders the Senior Claimholders for any checks or other payments provisionally credited all expenses to the Working Capital Facility Indebtednessextent earned or due and payable in accordance with the Senior Loan Documents (including the reimbursement of extraordinary expenses, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment financial examination expenses, and appraisal fees), and (iv4) agree to reimburse indemnify and hold harmless the Working Capital Facility Collateral Agent Senior Claimholders from and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in against any loss, costliability, claim, damage or expense (including reasonable attorneys’ fees and expenses of legal expensescounsel) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have arising out of any liability for such amounts in excess of the cash proceeds of Shared Collateral received claim asserted by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders a third party in respect of such Shared Collateral and (2) the Senior Obligations as a direct result of any amounts that are required to be turned over to acts by the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Subordinated Agent or any Interim Notes Noteholderother Subordinated Claimholder occurring after the date of the purchase and sale of the Senior Obligations, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused found by or resulting a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligationssuch Subordinated Claimholder. Such purchase price price, cash collateral, reimbursements and cash collateral other payments shall be remitted remitted, without set-off, recoupment or counterclaim, by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Senior Agent in New York, New York, as the Working Capital Facility Collateral Senior Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Subordinated Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Purchasing Subordinated Claimholders to the bank account designated by the Working Capital Facility Collateral Senior Agent are received in such bank account prior to 1:00 p.m. (3:00 p.m., New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Purchasing Subordinated Claimholders to the bank account designated by the Working Capital Facility Collateral Senior Agent are received in such bank account later than 1:00 p.m. (3:00 p.m., New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Senior Agent and Working Capital Facility Lenders the Senior Claimholders as to the Working Capital Facility Indebtedness Senior Obligations so purchased or otherwise and without recourse to the Working Capital Facility Collateral Senior Agent or Working Capital Facility Lendersany Senior Claimholder, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders each Senior Claimholder shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii1) that the Working Capital Facility Collateral Agent amount quoted by such Senior Claimholder as its portion of the purchase price represents the amount shown as owing with respect to the claims transferred as reflected on its books and Working Capital Facility Lenders own records (but without representation or warranty as to the Working Capital Facility Indebtedness collectability, validity or enforceability thereof), (2) it owns, or has the right to transfer to purchasing Subordinated Claimholders, the rights being transferred, and (3) such transfer will be free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedLiens.
(e) The Working Capital Facility Collateral Agent agrees that it shall give If the Interim Notes Collateral Subordinated Claimholders fail to exercise their purchase right under this Section 9 within the twenty (20) day period described above in Section 9(a), or fail to close the purchase within the required time period described above in Section 9(a), the Senior Agent and the Pari Passu Collateral Agent five Senior Claimholders shall have no further obligations pursuant to this Section 9.
(5f) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent any one or more of Subordinated Claimholders exercises and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise consummates the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under set forth in this Section 5.69, (1) the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Senior Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before right, but not the Outside Closing Date. Nothing contained in this Section 5.6(eobligation, to immediately resign under the Senior Credit Agreement, and (2) the purchasing Subordinated Claimholders shall restrict or prohibit have the Working Capital Facility Collateral right, but not the obligation, to require the Senior Agent from taking action to immediately resign under the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralSenior Credit Agreement.
Appears in 1 contract
Sources: Subordination and Intercreditor Agreement (Nuverra Environmental Solutions, Inc.)
Purchase Option. [AEG Intercreditor Agreement]
(a) Upon Notwithstanding anything in this Agreement to the contrary, on or at any time after (i) the commencement of an Insolvency or Liquidation Proceeding, (ii) the acceleration of the Priority Lien Obligations, or (iii) the delivery of any Section 363 Notice or the occurrence and during the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) daysany Section 363 Event, the Interim Notes Collateral Agent on behalf each of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf holders of the Pari Passu Lenders, after written demand by Second Lien Debt and each of their respective designated Affiliates (the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall “Second Lien Purchasers”) will have the several right, at their respective sole option and election (but will not be obligated), at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect Priority Lien Agent, to purchase a portion from the Priority Lien Secured Parties (A) all (but not less than all) Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (B) if applicable, all loans (and related obligations, including interest, fees and expenses) provided by any of the Working Capital Facility Indebtedness Priority Lien Secured Parties in connection with a DIP Financing that are outstanding on the date of such purchase. Promptly following the receipt of such notice, the Priority Lien Agent will deliver to the Second Lien Agent a statement of the amount of Priority Lien Debt, other Priority Lien Obligations (other than any Priority Lien Obligations constituting Excess Priority Lien Obligations) and DIP Financing (including interest, fees, expenses and other obligations in respect of such DIP Financing) provided by any of the Priority Lien Secured Parties, if any, then outstanding. The right to purchase provided for in this Section 3.06 will expire unless, within 10 Business Days after the receipt by the Second Lien Agent of such notice from the Working Capital Facility LendersPriority Lien Agent, ratably in proportion the Second Lien Agent delivers to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (Priority Lien Agent an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt irrevocable commitment of the information required Second Lien Purchasers to be delivered pursuant to clauses purchase (aA) and all (bbut not less than all) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (B) if applicable, all loans (and related obligations, including interest, fees and expenses) provided by any of the Working Capital Facility Indebtedness; provided, further, that Priority Lien Secured Parties in connection with a DIP Financing and to otherwise complete such revocation is in writing duly signed by purchase on the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights terms set forth under this Section 5.63.06.
(b) On the date specified by the Interim Notes Collateral Second Lien Agent or Pari Passu Collateral Agent (on behalf of the Second Lien Purchasers) in its respective Exercise Notice such irrevocable commitment (which shall not be less than five (5) Business Days nor more than 20 Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Priority Lien Agent of such irrevocable commitment), the Exercise Notice, Priority Lien Secured Parties shall sell to the Second Lien Purchasers (i) all (but not less than all) Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as if applicable, all loans (and related obligations, including interest, fees and expenses) provided by any of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, Priority Lien Secured Parties in connection with a DIP Financing that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon are outstanding on the date of such purchase sale, subject to any required approval of any Governmental Authority then in effect, if any, and only if on the date of such sale, the Interim Notes Collateral Priority Lien Agent and/or receives the Pari Passu Collateral Agent, as applicable, shall following:
(i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenderspayment, as the purchase price thereforefor all Priority Lien Obligations sold in such sale, of an amount equal to the full amount of (i) all Priority Lien Obligations other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (ii) if applicable, all loans (and related obligations, including interest, fees and expenses) provided by any of the respective Purchasable Portion of all the Working Capital Facility Indebtedness Priority Lien Secured Parties in connection with a DIP Financing then outstanding and unpaid (including principal, interest, fees and expensesfees, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) , but excluding contingent indemnification obligations for which no claim or demand for payment has been made at or prior to such time); provided that in the case of obligations under Secured Swap Agreements that constitute Priority Lien Obligations the Second Lien Purchasers shall cause the applicable agreements governing such obligations to be assigned and novated or, if such agreements have been terminated, such purchase price shall include an amount equal to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have sum of any liability for such unpaid amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders then due in respect of such Shared Collateral obligations, calculated using the market quotation method and after giving effect to any netting arrangements; and
(2ii) any amounts that are required agreements, documents or instruments which the Priority Lien Agent may reasonably request pursuant to which the Second Lien Agent and the Second Lien Purchasers in such sale expressly assume and adopt all of the obligations of the Priority Lien Agent and the Priority Lien Secured Parties under the Priority Lien Documents and in connection with loans (and related obligations, including interest, fees and expenses) provided by any of the Priority Lien Secured Parties in connection with a DIP Financing on and after the date of the purchase and sale and the Second Lien Agent (or any other representative appointed by the holders of a majority in aggregate principal amount of the Second Lien Obligations then outstanding) becomes a successor agent thereunder.
(c) Such purchase of the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing shall be turned over made on a pro rata basis among the Second Lien Purchasers giving notice to the Working Capital Facility Collateral Priority Lien Agent or of their interest to exercise the Working Capital Facility Lenders under this Agreement, including pursuant purchase option hereunder according to Section 6.6, (B) in no event shall each such Second Lien Purchaser’s portion of the Interim Notes Collateral Agent or any Interim Notes Noteholder, Second Lien Debt outstanding on the one hand, date of purchase or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any portion as such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility ObligationsSecond Lien Purchasers may otherwise agree among themselves. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Priority Lien Agent in New York, New York, as the Working Capital Facility Collateral Priority Lien Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Second Lien Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur occurs if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account prior to 1:00 p.m. (12:00 noon, New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account later than 1:00 p.m. (12:00 noon, New York City time).
(d) Such purchase sale shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties as to the Working Capital Facility Indebtedness Priority Lien Obligations, the Collateral or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lendersany Priority Lien Secured Party, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall represent and warrantwarrant severally as to the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing then owing to it: (i) the amount that such applicable Priority Lien Secured Party owns such Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Working Capital Facility Indebtedness being purchased, Priority Lien Secured Parties in connection with a DIP Financing; and (ii) that such applicable Priority Lien Secured Party has the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens necessary corporate or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right other governing authority to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedsuch interests.
(e) The Working Capital Facility Collateral Agent agrees that it shall give Each Grantor irrevocably consents to any assignment effected to one or more Second Lien Purchasers pursuant to this Section 3.06 (so long as they meet all eligibility standards contained in all relevant Priority Lien Documents, other than obtaining the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise consent of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send Grantor to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action an assignment to the extent required by such Priority Lien Documents) for purposes of all Priority Lien Documents and hereby agrees that the Working Capital Facility Collateral Agent, in its good faith judgment, deems no further consent from such action to Grantor shall be necessary to preserve or protect the Shared Collateralrequired.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Atlas Energy Group, LLC)
Purchase Option. (a) Upon Without prejudice to the occurrence enforcement of the Senior Priority Secured Parties' rights and during the continuance of an Event of Default or an event of default remedies under the Working Capital Facility Documents that is not cured or waived Senior Priority Debt Documents, and notwithstanding anything in this Agreement to the contrary, within thirty (30) days30 days following the acceleration of any Senior Priority Obligations, the Interim Notes Collateral Agent Junior Priority Representatives, acting on behalf of the Interim Notes Noteholders, themselves and the Pari Passu Collateral Agent on behalf other Junior Priority Secured Parties under the applicable Junior Priority Debt Facility of which it is the Representative, may at the sole expense and effort of the Pari Passu LendersJunior Priority Secured Parties, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, upon delivery of a Purchase Notice to the Company for Borrower and the accelerated payment of all Interim Notes Obligations or Pari Passu ObligationsSenior Priority Representative, as applicable, shall have require the option at any time upon five (5) Business Days’ prior written notice applicable Senior Priority Secured Parties to transfer and assign to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Junior Priority Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On Parties on the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise such Purchase Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms definition thereof, without warranty or representation or recourse, all (but not less than all) of such Senior Priority Obligations (such transfer and assignment, the "Purchase"); provided that (v) such assignment shall not conflict with any law, rule or regulation or order of any court or other Governmental Authority having jurisdiction and shall be effected pursuant to an assignment agreement in form reasonably satisfactory to the Senior Priority Representative, (w) the Junior Priority Secured Parties shall have paid to the Senior Priority Representative, for the account of the Working Capital Facility Documents as applicable Senior Priority Secured Parties, in immediately available funds, an amount equal to actions 100% of the principal of such Indebtedness plus all accrued and unpaid interest thereon plus all accrued and unpaid fees plus all the other Senior Priority Obligations then outstanding (which shall include (i) any acceleration prepayment penalties or events premiums, (ii) [reserved], (iii) with respect to Hedging Agreements that occurred or did not occur prior constitute Senior Priority Obligations, [●]% of the aggregate amount of such Senior Priority Obligations (giving effect to any netting arrangements) that the applicable Grantor would be required to pay if such Hedging Agreements were terminated at such time, (iv) with respect to Secured Cash Management Agreements, the net aggregate amount then owing to creditors thereunder to the closing of the of the sale of the Working Capital Facility Indebtedness extent constituting Senior Priority Obligations, including all amounts owing to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed such creditors as a result of the purchase of termination (or early termination) thereof, (v) an amount reasonably calculated by the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents under the Senior Credit Agreement to Cash Collateralize the Letter of Credit Obligations, and warrants that(vi) with respect to any contingent or unliquidated Senior Priority Obligations related to claims, as causes of the date it becomes a party to this Agreement, no approval of action or liabilities that have been threatened or asserted against any court Senior Priority Secured Party for which indemnification or other regulatory or governmental authority reimbursement is required for under the Senior Priority Debt Documents, an amount reasonably calculated by such sale.
(c) Upon the date of Senior Priority Secured Party to cash collateralize such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility DocumentSenior Priority Obligations), (iix) furnish cash collateral the Junior Priority Secured Parties shall have agreed to indemnify and hold the Working Capital Facility Collateral Agent in such amounts as Senior Priority Representative and the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent other Senior Priority Secured Parties harmless from and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any against all loss, cost, damage or expense (including reasonable attorneys’ ' fees and legal expenses) suffered or incurred by such Persons arising from or in any way relating to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; providedPurchase or, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by relating to the Senior Priority Debt Documents, acts or resulting from the gross negligence or willful misconduct omissions of the Working Capital Facility Collateral AgentJunior Priority Secured Parties after the Purchase, (y) the Designated Junior Priority Representative shall have executed and delivered to the Senior Priority Representative a waiver of all claims arising out of this Agreement and the transactions contemplated hereby as determined by a final non-appealable result of exercising the option to effect the Purchase and (z) each Senior Priority Secured Party is permitted to retain all rights to indemnification provided in the relevant Senior Priority Debt Documents for all claims and other amounts relating to periods prior to such transfer of the Senior Priority Obligations. In order to effectuate the Purchase, the Senior Priority Representative shall calculate, upon the written request of a court of competent jurisdictionthe Designated Junior Priority Representative from time to time, the amount in cash that would be necessary so to purchase the Senior Priority Obligations (based on information available to it, and (D) any amounts reimbursed shall use commercially reasonable efforts to obtain information not available to it necessary to perform such calculation). Each Grantor agrees hereby to consent to the transfer and assignment effectuated by the Interim Notes Collateral Agent Purchase and agrees to promptly provide the Senior Priority Representative with all information in its possession or the Pari Passu Collateral Agent pursuant reasonably available to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, it as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid reasonably requested by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received Senior Priority Representative in connection with any such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time)calculation.
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 1 contract
Sources: Credit Agreement (SunOpta Inc.)
Purchase Option. (a) Upon Notwithstanding anything in this Agreement to the occurrence and during contrary, within sixty (60) days of the continuance earlier of (i) the commencement of an Event of Default Insolvency or an event of default under Liquidation Proceeding or (ii) the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf acceleration of the Interim Notes NoteholdersPriority Lien Obligations, and the Pari Passu Collateral Agent on behalf holders of the Pari Passu Lenders, after written demand by Second Lien Debt and each of their respective designated Affiliates (the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall “Second Lien Purchasers”) will have the right, at their sole option and election (but will not be obligated), at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect Priority Lien Agent, to purchase a portion from the Priority Lien Secured Parties (x) all (but not less than all, other than any Priority Lien Obligations constituting Excess Priority Lien Obligations) Priority Lien Obligations (including unfunded commitments) and (y) any loans provided by any of the Working Capital Facility Indebtedness from Priority Lien Secured Parties in connection with a DIP Financing that are outstanding on the Working Capital Facility Lendersdate of such purchase. Promptly following the receipt of such notice, ratably in proportion the Priority Lien Agent will deliver to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Second Lien Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt a statement of the information required amount of Priority Lien Debt, other Priority Lien Obligations (other than any Priority Lien Obligations constituting Excess Priority Lien Obligations) and DIP Financing provided by any of the Priority Lien Secured Parties, if any, then outstanding and the amount of the cash collateral requested by the Priority Lien Agent to be delivered pursuant to clauses Section 3.06(b)(ii) below. The right to purchase provided for in this Section 3.06 will expire unless, within 10 Business Days after the receipt by the Second Lien Agent of such statement from the Priority Lien Agent, the Second Lien Agent delivers to the Priority Lien Agent an irrevocable commitment of the Second Lien Purchasers to purchase (ax) all (but not less than all, other than any Priority Lien Obligations constituting Excess Priority Lien Obligations) of the Priority Lien Obligations (including unfunded commitments) and (by) any loans provided by any of the definition of “Qualified Indemnification Claim” Priority Lien Secured Parties in connection with a DIP Financing and to revoke otherwise complete such election to purchase such portion of on the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights terms set forth under this Section 5.63.06.
(b) On the date specified by the Interim Notes Collateral Second Lien Agent or Pari Passu Collateral Agent (on behalf of the Second Lien Purchasers) in its respective Exercise Notice such irrevocable commitment (which shall not be less than five (5) Business Days nor more than 20 Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Priority Lien Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)irrevocable commitment), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall sell to the Interim Notes Collateral Second Lien Purchasers (x) all (but not less than all, other than any Priority Lien Obligations constituting Excess Priority Lien Obligations (such period from the date of receipt by the Priority Lien Agent and/or of such irrevocable commitment to such date specified by the Pari Passu Collateral AgentSecond Lien Agent for such sale in such irrevocable commitment the “Pendency Period”)) of the Priority Lien Obligations (including unfunded commitments) and (y) any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing that are outstanding on the date of such sale, subject to any required approval of any Governmental Authority then in effect, if any, and only if on the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lendersdate of such sale, the respective Purchasable PortionPriority Lien Agent receives the following:
(i) payment, as the purchase price for all Priority Lien Obligations sold in such sale, of an amount equal to the full par value amount of (x) all Priority Lien Obligations (other than outstanding letters of credit as referred to in clause (ii) below) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations to the extent not purchased and (y) loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing then outstanding (including principal, interest, fees, reasonable attorneys’ fees and legal expenses, but excluding contingent indemnification obligations for which no claim or demand for payment has been made at or prior to such time); provided, provided that (A) in the Working Capital Facility Collateral Agent and Working Capital Facility Lenders case of Hedging Obligations that constitute Priority Lien Obligations the Second Lien Purchasers shall retain all rights cause the applicable agreements governing such Hedging Obligations to be indemnified or held harmless by assigned and novated or, if such agreements have been terminated, such purchase price shall include an amount equal to the sum of any Obligor unpaid amounts then due in respect of such Hedging Obligations, calculated in accordance with the terms of the Working Capital Facility Documents as such Hedging Obligation and after giving effect to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.netting arrangements;
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish a cash collateral to the Working Capital Facility Collateral Agent deposit in such amounts amount as the Working Capital Facility Collateral Priority Lien Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with payment of any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit constituting Priority Lien Obligations that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent may become due and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor payable after such sale (but not in any event in an amount greater than 110% one hundred five percent (105%) of the amount then reasonably estimated by the Priority Lien Agent to be the aggregate undrawn face outstanding amount of such letters of creditcredit at such time), which cash collateral shall be (A) held by the issuer of such letters of credit as security solely to reimburse the issuers of such letters of credit that become due and payable after such sale and any fees and expenses incurred in connection with such letters of credit and (B) returned to the Second Lien Agent (except as may otherwise be required by applicable law or any order of any court or other Governmental Authority) promptly after the expiration or termination from time to time of all payment contingencies affecting such letters of credit; and
(iii) agree to reimburse any agreements, documents or instruments which the Working Capital Facility Collateral Priority Lien Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as may reasonably request pursuant to which the Working Capital Facility Collateral Second Lien Agent and the Second Lien Purchasers in such sale expressly assume and adopt all of the obligations of the Priority Lien Agent and the Priority Lien Secured Parties under the Priority Lien Documents and in connection with loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing on and after the date of the purchase and sale and the Second Lien Agent (or Working Capital Facility Lenders has not yet received final payment and any other representative appointed by the holders of a majority in aggregate principal amount of the Second Lien Notes then outstanding) becomes a successor agent thereunder.
(iv) agree During the Pendency Period, the Priority Lien Secured Parties shall refrain from exercising remedies (subject to reimburse exigent circumstances).
(c) Such purchase of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense Priority Lien Obligations (including reasonable attorneys’ fees unfunded commitments) and legal expenses) any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing shall be made on a pro rata basis among the Second Lien Purchasers giving notice to the Working Capital Facility Collateral Priority Lien Agent and Working Capital Facility Lenders; provided, that (A) in no event will of their interest to exercise the Interim Notes Collateral Agent or Interim Notes Noteholders, purchase option hereunder according to each such Second Lien Purchaser’s portion of the Second Lien Debt outstanding on the one hand, date of purchase or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, portion as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility ObligationsSecond Lien Purchasers may otherwise agree among themselves. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Priority Lien Agent in New York, New York, as the Working Capital Facility Collateral Priority Lien Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Second Lien Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur occurs if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account prior to 1:00 p.m. (12:00 noon, New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account later than 1:00 p.m. (12:00 noon, New York City time).
(d) Such purchase sale shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties as to the Working Capital Facility Indebtedness Priority Lien Obligations, the Collateral or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lendersany Priority Lien Secured Party, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall represent and warrantwarrant severally as to the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing then owing to it: (i) the amount that such applicable Priority Lien Secured Party owns such Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Working Capital Facility Indebtedness being purchased, Priority Lien Secured Parties in connection with a DIP Financing; and (ii) that such applicable Priority Lien Secured Party has the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens necessary corporate or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right other governing authority to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedsuch interests.
(e) The Working Capital Facility After such sale becomes effective, the outstanding letters of credit will remain enforceable against the issuers thereof and will remain secured by the Priority Liens upon the Collateral Agent agrees that it shall give in accordance with the Interim Notes Collateral Agent applicable provisions of the Priority Lien Documents as in effect at the time of such sale, and the Pari Passu Collateral Agent five (5) Business Days prior written notice issuers of its intention to commence the exercise letters of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send credit will remain entitled to the Working Capital Facility Collateral Agent the irrevocable notice benefit of the Interim Notes Priority Liens upon the Collateral Agent’s and sharing rights in the Pari Passu Collateral Agent’s intention proceeds thereof in accordance with the provisions of the Priority Lien Documents as in effect at the time of such sale, as fully as if the sale of the Priority Lien Debt had not been made, but, except with respect to exercise the purchase option given cash collateral held by the Working Capital Facility Collateral Agent issuers of such letters of credit, only the Person or successor agent to whom the Priority Liens are transferred in such sale will have the right to foreclose upon or otherwise enforce the Priority Liens and only the Second Lien Purchasers in the sale will have the right to direct such Person or successor as to matters relating to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full enforcement of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralPriority Liens.
Appears in 1 contract
Purchase Option. (a) Upon Notwithstanding anything in this Agreement to the occurrence and during contrary, on or at any time after (i) the continuance commencement of an Event of Default Insolvency or an event of default under Liquidation Proceeding or (ii) the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf acceleration of the Interim Notes NoteholdersPriority Lien Obligations, and the Pari Passu Collateral Agent on behalf holders of the Pari Passu Lenders, after written demand by Second Lien Debt and each of their respective designated Affiliates (the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall “Second Lien Purchasers”) will have the right, at their sole option and election (but will not be obligated), at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect Priority Lien Agent, to purchase a portion from the Priority Lien Secured Parties all (but not less than all) Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Working Capital Facility Indebtedness from Priority Lien Secured Parties in connection with a DIP Financing that are outstanding on the Working Capital Facility Lendersdate of such purchase. Promptly following the receipt of such notice, ratably in proportion the Priority Lien Agent will deliver to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt Second Lien Trustee a statement of the information required amount of Priority Lien Debt, other Priority Lien Obligations and DIP Financing provided by any of the Priority Lien Secured Parties, if any, then outstanding and the amount of the cash collateral requested by the Priority Lien Agent to be delivered pursuant to clauses Section 3.06(b)(ii) below. The right to purchase provided for in this Section 3.06 will expire unless, within 10 Business Days after the receipt by the Second Lien Trustee of such notice from the Priority Lien Agent, the Second Lien Trustee delivers to the Priority Lien Agent an irrevocable commitment of the Second Lien Purchasers to purchase all (a) and (bbut not less than all) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Working Capital Facility Indebtedness; provided, further, that Priority Lien Secured Parties in connection with a DIP Financing and to otherwise complete such revocation is in writing duly signed by purchase on the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights terms set forth under this Section 5.63.06.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent Second Lien Trustee (on behalf of the Second Lien Purchasers) in its respective Exercise Notice such irrevocable commitment (which shall not be less than five (5) Business Days nor more than 20 Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Priority Lien Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)irrevocable commitment), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, Second Lien Purchasers all (but not less than all) Priority Lien Obligations (including unfunded commitments) and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless any loans provided by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events Priority Lien Secured Parties in connection with a DIP Financing that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon are outstanding on the date of such purchase sale, subject to any required approval of any Governmental Authority then in effect, if any, and only if on the date of such sale, the Interim Notes Collateral Priority Lien Agent and/or receives the Pari Passu Collateral Agent, as applicable, shall following:
(i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenderspayment, as the purchase price thereforefor all Priority Lien Obligations sold in such sale, of an amount equal to the full amount of all Priority Lien Obligations (other than outstanding letters of credit as referred to in clause (ii) below) and loans provided by any of the respective Purchasable Portion of all the Working Capital Facility Indebtedness Priority Lien Secured Parties in connection with a DIP Financing then outstanding and unpaid (including principal, interest, fees and expensesfees, including reasonable attorneys’ fees and legal expenses expenses, but excluding any early termination fee contingent indemnification obligations for which no claim or prepayment penalty demand for payment has been made at or premium payable pursuant prior to such time); provided that in the case of Hedging Obligations that constitute Priority Lien Obligations the Second Lien Purchasers shall cause the applicable agreements governing such Hedging Obligations to be assigned and novated or, if such agreements have been terminated, such purchase price shall include an amount equal to the Working Capital Facility Agreement or sum of any other Working Capital Facility Document)unpaid amounts then due in respect of such Hedging Obligations, calculated using the market quotation method and after giving effect to any netting arrangements;
(ii) furnish a cash collateral to the Working Capital Facility Collateral Agent deposit in such amounts amount as the Working Capital Facility Collateral Priority Lien Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with payment of any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit constituting Priority Lien Obligations that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent may become due and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor payable after such sale (but not in any event in an amount greater than 110% one hundred five percent (105%) of the amount then reasonably estimated by the Priority Lien Agent to be the aggregate undrawn face outstanding amount of such letters of creditcredit at such time), which cash collateral shall be (A) held by the Priority Lien Agent as security solely to reimburse the issuers of such letters of credit that become due and payable after such sale and any fees and expenses incurred in connection with such letters of credit and (B) returned to the Second Lien Trustee (except as may otherwise be required by applicable law or any order of any court or other Governmental Authority) promptly after the expiration or termination from time to time of all payment contingencies affecting such letters of credit; and
(iii) agree to reimburse any agreements, documents or instruments which the Working Capital Facility Collateral Priority Lien Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as may reasonably request pursuant to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment Second Lien Trustee and (iv) agree to reimburse the Working Capital Facility Collateral Second Lien Purchasers in such sale expressly assume and adopt all of the obligations of the Priority Lien Agent and Working Capital Facility Lenders the Priority Lien Secured Parties under the Priority Lien Documents and in respect connection with loans provided by any of Qualified Indemnification Claims which the Priority Lien Secured Parties in fact result connection with a DIP Financing on and after the date of the purchase and sale and the Second Lien Trustee (or any other representative appointed by the holders of a majority in any loss, cost, damage or expense aggregate principal amount of the Second Lien Indenture Notes then outstanding) becomes a successor agent thereunder.
(c) Such purchase of the Priority Lien Obligations (including reasonable attorneys’ fees unfunded commitments) and legal expenses) any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing shall be made on a pro rata basis among the Second Lien Purchasers giving notice to the Working Capital Facility Collateral Priority Lien Agent and Working Capital Facility Lenders; provided, that (A) in no event will of their interest to exercise the Interim Notes Collateral Agent or Interim Notes Noteholders, purchase option hereunder according to each such Second Lien Purchaser’s portion of the Second Lien Debt outstanding on the one hand, date of purchase or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, portion as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility ObligationsSecond Lien Purchasers may otherwise agree among themselves. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Priority Lien Agent in New York, New York, as the Working Capital Facility Collateral Priority Lien Agent may designate in writing to the Interim Notes Second Lien Collateral Agent and Pari Passu Collateral Agent Trustee for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur occurs if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account prior to 1:00 p.m. (12:00 noon, New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account later than 1:00 p.m. (12:00 noon, New York City time).
(d) Such purchase sale shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties as to the Working Capital Facility Indebtedness Priority Lien Obligations, the Collateral or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lendersany Priority Lien Secured Party, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall represent and warrantwarrant severally as to the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing then owing to it: (i) the amount that such applicable Priority Lien Secured Party own such Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Working Capital Facility Indebtedness being purchased, Priority Lien Secured Parties in connection with a DIP Financing; and (ii) that such applicable Priority Lien Secured Party has the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens necessary corporate or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right other governing authority to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedsuch interests.
(e) The Working Capital Facility After such sale becomes effective, the outstanding letters of credit will remain enforceable against the issuers thereof and will remain secured by the Priority Liens upon the Collateral Agent agrees that it shall give in accordance with the Interim Notes Collateral Agent applicable provisions of the Priority Lien Documents as in effect at the time of such sale, and the Pari Passu Collateral Agent five (5) Business Days prior written notice issuers of its intention to commence the exercise letters of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send credit will remain entitled to the Working Capital Facility Collateral Agent the irrevocable notice benefit of the Interim Notes Priority Liens upon the Collateral Agent’s and sharing rights in the Pari Passu Collateral Agent’s intention proceeds thereof in accordance with the provisions of the Priority Lien Documents as in effect at the time of such sale, as fully as if the sale of the Priority Lien Debt had not been made, but only the Person or successor agent to exercise whom the purchase option given by Priority Liens are transferred in such sale will have the Working Capital Facility Collateral Agent right to foreclose upon or otherwise enforce the Priority Liens and only the Second Lien Purchasers in the sale will have the right to direct such Person or successor as to matters relating to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full enforcement of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralPriority Liens.
Appears in 1 contract
Purchase Option. (a) Upon Notwithstanding anything in this Agreement to the contrary, on or at any time after (i) the commencement of an Insolvency or Liquidation Proceeding, (ii) the acceleration of the Priority Lien Obligations, (iii) the exercise or undertaking of any rights of set-off in respect of any Collateral by any Priority Lien Secured Parties under any Priority Lien Document, (iv) the occurrence and during the continuance of an Event of Default or an any event of default based on non-payment of principal under any Priority Lien Document, (v) the Working Capital Facility Documents that is not cured delivery of any Priority Lien Release Notice, or waived within thirty (30vi) daysthe delivery of any Section 363 Notice or the occurrence of any Section 363 Event, the Interim Notes Collateral Agent on behalf each of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf holders of the Pari Passu Lenders, after written demand by Second Lien Debt and each of their respective designated Affiliates (the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall “Second Lien Purchasers”) will have the several right, at their respective sole option and election (but will not be obligated), at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect Priority Lien Agent, to purchase a portion from the Priority Lien Secured Parties (A) all (but not less than all) Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (B) if applicable, all loans (and related obligations, including interest, fees and expenses) provided by any of the Working Capital Facility Indebtedness from Priority Lien Secured Parties in connection with a DIP Financing that are outstanding on the Working Capital Facility Lendersdate of such purchase. Promptly following the receipt of such notice, ratably in proportion the Priority Lien Agent will deliver to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt Second Lien Trustee a statement of the information required amount of Priority Lien Debt, other Priority Lien Obligations (other than any Priority Lien Obligations constituting Excess Priority Lien Obligations) and DIP Financing (including interest, fees, expenses and other obligations in respect of such DIP Financing) provided by any of the Priority Lien Secured Parties, if any, then outstanding and the amount of the cash collateral requested by the Priority Lien Agent to be delivered pursuant to clauses Section 3.06(b)(ii) below. The right to purchase provided for in this Section 3.06 will expire unless, within 10 Business Days after the receipt by the Second Lien Trustee of such notice from the Priority Lien Agent, the Second Lien Trustee delivers to the Priority Lien Agent an irrevocable commitment of the Second Lien Purchasers to purchase (aA) and all (bbut not less than all) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (B) if applicable, all loans (and related obligations, including interest, fees and expenses) provided by any of the Working Capital Facility Indebtedness; provided, further, that Priority Lien Secured Parties in connection with a DIP Financing and to otherwise complete such revocation is in writing duly signed by purchase on the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights terms set forth under this Section 5.63.06.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent Second Lien Trustee (on behalf of the Second Lien Purchasers) in its respective Exercise Notice such irrevocable commitment (which shall not be less than five (5) Business Days nor more than 20 Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Priority Lien Agent of such irrevocable commitment), the Exercise Notice, Priority Lien Secured Parties shall sell to the Second Lien Purchasers (i) all (but not less than all) Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as if applicable, all loans (and related obligations, including interest, fees and expenses) provided by any of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, Priority Lien Secured Parties in connection with a DIP Financing that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon are outstanding on the date of such purchase sale, subject to any required approval of any Governmental Authority then in effect, if any, and only if on the date of such sale, the Interim Notes Collateral Priority Lien Agent and/or receives the Pari Passu Collateral Agent, as applicable, shall following:
(i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenderspayment, as the purchase price thereforefor all Priority Lien Obligations sold in such sale, of an amount equal to the full amount of (i) all Priority Lien Obligations (other than outstanding letters of credit as referred to in clause (ii) below) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (ii) if applicable, all loans (and related obligations, including interest, fees and expenses) provided by any of the respective Purchasable Portion of all the Working Capital Facility Indebtedness Priority Lien Secured Parties in connection with a DIP Financing then outstanding and unpaid (including principal, interest, fees and expensesfees, including reasonable attorneys’ fees and legal expenses expenses, but excluding any early termination fee contingent indemnification obligations for which no claim or prepayment penalty demand for payment has been made at or premium payable pursuant prior to such time); provided that in the case of Hedging Obligations that constitute Priority Lien Obligations the Second Lien Purchasers shall cause the applicable agreements governing such Hedging Obligations to be assigned and novated or, if such agreements have been terminated, such purchase price shall include an amount equal to the Working Capital Facility Agreement or sum of any other Working Capital Facility Document)unpaid amounts then due in respect of such Hedging Obligations, calculated using the market quotation method and after giving effect to any netting arrangements;
(ii) furnish a cash collateral to the Working Capital Facility Collateral Agent deposit in such amounts amount as the Working Capital Facility Collateral Priority Lien Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with payment of any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit constituting Priority Lien Obligations that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent may become due and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor payable after such sale (but not in any event in an amount greater than 110% one hundred five percent (105%) of the amount then reasonably estimated by the Priority Lien Agent to be the aggregate undrawn face outstanding amount of such letters of creditcredit at such time), which cash collateral shall be (A) held by the Priority Lien Agent as security solely to reimburse the issuers of such letters of credit that become due and payable after such sale and any fees and expenses incurred in connection with such letters of credit and (B) returned to the Second Lien Trustee (except as may otherwise be required by applicable law or any order of any court or other Governmental Authority) promptly after the expiration or termination from time to time of all payment contingencies affecting such letters of credit; and
(iii) agree to reimburse any agreements, documents or instruments which the Working Capital Facility Collateral Priority Lien Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as may reasonably request pursuant to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment Second Lien Trustee and (iv) agree to reimburse the Working Capital Facility Collateral Second Lien Purchasers in such sale expressly assume and adopt all of the obligations of the Priority Lien Agent and Working Capital Facility Lenders the Priority Lien Secured Parties under the Priority Lien Documents and in respect connection with loans (and related obligations, including interest, fees and expenses) provided by any of Qualified Indemnification Claims which the Priority Lien Secured Parties in fact result connection with a DIP Financing on and after the date of the purchase and sale and the Second Lien Trustee (or any other representative appointed by the holders of a majority in any loss, cost, damage or expense aggregate principal amount of the Second Lien Indenture Notes then outstanding) becomes a successor agent thereunder.
(c) Such purchase of the Priority Lien Obligations (including reasonable attorneys’ fees unfunded commitments) and legal expenses) any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing shall be made on a pro rata basis among the Second Lien Purchasers giving notice to the Working Capital Facility Collateral Priority Lien Agent and Working Capital Facility Lenders; provided, that (A) in no event will of their interest to exercise the Interim Notes Collateral Agent or Interim Notes Noteholders, purchase option hereunder according to each such Second Lien Purchaser’s portion of the Second Lien Debt outstanding on the one hand, date of purchase or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, portion as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility ObligationsSecond Lien Purchasers may otherwise agree among themselves. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Priority Lien Agent in New York, New York, as the Working Capital Facility Collateral Priority Lien Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Second Lien Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur occurs if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account prior to 1:00 p.m. (12:00 noon, New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account later than 1:00 p.m. (12:00 noon, New York City time).
(d) Such purchase sale shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties as to the Working Capital Facility Indebtedness Priority Lien Obligations, the Collateral or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lendersany Priority Lien Secured Party, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall represent and warrantwarrant severally as to the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing then owing to it: (i) the amount that such applicable Priority Lien Secured Party owns such Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Working Capital Facility Indebtedness being purchased, Priority Lien Secured Parties in connection with a DIP Financing; and (ii) that such applicable Priority Lien Secured Party has the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens necessary corporate or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right other governing authority to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedsuch interests.
(e) The Working Capital Facility After such sale becomes effective, the outstanding letters of credit will remain enforceable against the issuers thereof and will remain secured by the Priority Liens upon the Collateral Agent agrees that it shall give in accordance with the Interim Notes Collateral Agent applicable provisions of the Priority Lien Documents as in effect at the time of such sale, and the Pari Passu Collateral Agent five (5) Business Days prior written notice issuers of its intention to commence the exercise letters of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send credit will remain entitled to the Working Capital Facility Collateral Agent the irrevocable notice benefit of the Interim Notes Priority Liens upon the Collateral Agent’s and sharing rights in the Pari Passu Collateral Agent’s intention proceeds thereof in accordance with the provisions of the Priority Lien Documents as in effect at the time of such sale, as fully as if the sale of the Priority Lien Debt had not been made, but only the Person or successor agent to exercise whom the purchase option given by Priority Liens are transferred in such sale will have the Working Capital Facility Collateral Agent right to foreclose upon or otherwise enforce the Priority Liens and only the Second Lien Purchasers in the sale will have the right to direct such Person or successor as to matters relating to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full enforcement of the Working Capital Facility Indebtedness Priority Liens.
(f) Each Grantor irrevocably consents to any assignment effected to one or more Second Lien Purchasers pursuant to this Section 3.06 (so long as provided for herein on or before the Outside Closing Date. Nothing they meet all eligibility standards contained in this Section 5.6(e) shall restrict or prohibit all relevant Priority Lien Documents, other than obtaining the Working Capital Facility Collateral Agent from taking action consent of any Grantor to an assignment to the extent required by such Priority Lien Documents) for purposes of all Priority Lien Documents and hereby agrees that the Working Capital Facility Collateral Agent, in its good faith judgment, deems no further consent from such action to Grantor shall be necessary to preserve or protect the Shared Collateralrequired.
Appears in 1 contract
Sources: Intercreditor Agreement (Vanguard Natural Resources, LLC)
Purchase Option. (a) Upon the occurrence and during the continuance continuation of an Event of Default a Triggering Event, any one or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf more of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee Fixed Asset Claimholders (acting in their individual capacity or the Interim Notes Collateral Agent, on the through one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, more affiliates) shall have the option at any time right, but not the obligation (each Fixed Asset Claimholder having a ratable right to make the purchase, with each Fixed Asset Claimholder’s right to purchase being automatically proportionately increased by the amount not purchased by another Fixed Asset Claimholder), upon five (5) 5 Business Days’ Days prior written notice to the Working Capital Facility Collateral Agent to elect to purchase from (or on behalf of) such Fixed Asset Claimholders (a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Purchase Notice”) to the ABL Collateral Agents to acquire from the Interim Notes Collateral Agent or Pari Passu Collateral AgentABL Claimholders all (but not less than all) of the right, as applicabletitle, and interest of the ABL Claimholders in and to the Working Capital Facility Collateral Agent ABL Priority Obligations and the ABL Loan Documents. The Purchase Notice, if given, shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Designated Fixed Asset Collateral Agent in its respective Exercise the Purchase Notice (which shall not be less than five (5) 5 Business Days, nor more than the later of (i) thirty (30) days 10 Business Days, after the receipt by the Working Capital Facility ABL Collateral Agent Agents of the Exercise Purchase Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders ABL Claimholders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, purchasing Fixed Asset Claimholders and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent purchasing Fixed Asset Claimholders shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility LendersABL Claimholders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleABL Priority Obligations.
(c) Upon On the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall purchasing Fixed Asset Claimholders shall:
(i) pay in cash to the Working Capital Facility ABL Collateral AgentAgents, for the benefit of Working Capital Facility Lendersthe ABL Claimholders, as the purchase price thereforetherefor, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness ABL Priority Obligations (other than (A) any prepayment fees or premiums, (B) indemnification obligations for which no claim or demand for payment has been made at such time and (C) ABL Priority Obligations cash collateralized in accordance with clause (c)(ii) below) then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), unpaid,
(ii) furnish cash collateral to the Working Capital Facility ABL Collateral Agent Agents in such amounts as the Working Capital Facility ABL Collateral Agent determines Agents determine is reasonably necessary to secure the Working Capital Facility ABL Collateral Agent Agents and Working Capital Facility Lenders the ABL Claimholders in connection with respect of the following: (A) any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor constituting ABL Priority Obligations (but not in any event in an amount greater than 110105% of the aggregate undrawn face amount of such letters of credit), ) (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited such cash collateral shall be applied to the Working Capital Facility Indebtednessreimbursement of any drawing under a letter of credit as and when such drawing is paid and, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect if a letter of Qualified Indemnification Claims which in fact result in any losscredit expires undrawn, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received collateral held by the Interim Notes ABL Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders Agents in respect of such Shared Collateral and (2) any amounts that are required to letter of credit shall be turned over remitted to the Working Capital Facility Designated Fixed Asset Collateral Agent or for the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, benefit of the purchasing Fixed Asset Claimholders) and (B) ABL Bank Product Obligations and ABL Hedging Obligations, in no each case, constituting ABL Priority Obligations (but not in any event in an amount greater than 100% of the aggregate outstanding amount thereof) (such cash collateral shall be applied to the Interim Notes reimbursement of such ABL Bank Product Obligations and ABL Hedging Obligations as and when such obligations become due and payable and, at such time as all of such ABL Bank Product Obligations and ABL Hedging Obligations are paid or satisfied in full, the remaining cash collateral held by the ABL Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or Agents in respect of any indemnification claims such ABL Bank Product Obligations and ABL Hedging Obligations shall be remitted to the Designated Fixed Asset Collateral Agent for the benefit of the purchasing Fixed Asset Claimholders), and
(iii) pay to the ABL Collateral Agents and the other ABL Claimholders the amount of all fees (other than any prepayment fees or premiums) and expenses in respect of the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses ABL Priority Obligations to the extent caused by earned or resulting from due and payable in accordance with the gross negligence or willful misconduct ABL Loan Documents (including the reimbursement of the Working Capital Facility Collateral Agentattorneys fees, as determined by a final non-appealable order of a court of competent jurisdictionfinancial examination expenses, and appraisal fees).
(Dd) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in of federal funds to such bank account of the Working Capital Facility applicable ABL Collateral Agent in New York, New York, as the Working Capital Facility such ABL Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Designated Fixed Asset Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Fixed Asset Claimholders to the bank account designated by the Working Capital Facility such ABL Collateral Agent are received in such bank account prior to 1:00 p.m. (2:00 p.m., New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, purchasing Fixed Asset Claimholders to the bank account designated by the Working Capital Facility such ABL Collateral Agent are received in such bank account later than 1:00 p.m. (2:00 p.m., New York City time).
(de) Such purchase shall be effected by the execution and delivery of the form of assignment and acceptance agreement attached as an exhibit to the applicable ABL Credit Agreement and shall be expressly made without representation or warranty of any kind by the Working Capital Facility any ABL Collateral Agent and Working Capital Facility Lenders the other ABL Claimholders as to the Working Capital Facility Indebtedness ABL Priority Obligations so purchased, or otherwise otherwise, and without recourse to the Working Capital Facility any ABL Collateral Agent or Working Capital Facility Lendersany other ABL Claimholder, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders each ABL Claimholder shall represent and warrant: (i) that the amount quoted by such ABL Claimholder as its portion of the Working Capital Facility Indebtedness being purchasedpurchase price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (ii) that it owns, or has the Working Capital Facility Collateral Agent right to transfer to the purchasing Fixed Asset Claimholders, the rights being transferred, and Working Capital Facility Lenders own the Working Capital Facility Indebtedness (iii) such transfer will be free and clear of Liens.
(f) In the event that (i) the purchasing Fixed Asset Claimholders receive all or a portion of any Liens prepayment fee or encumbrances premium payable pursuant to the ABL Loan Documents in cash, (ii) all ABL Priority Obligations purchased by such purchasing Fixed Asset Claimholders and all of the Fixed Asset Priority Obligations, including principal, interest and fees thereon and costs and expenses of collection thereof (including reasonable attorneys fees and legal expenses), are repaid in full in cash, and (iii) the Working Capital Facility ABL Credit Agreements are terminated, in each case, within 90 days following the date on which the purchasing Fixed Asset Claimholders pay the purchase price described in clause (c) above, then, within 3 Business Days after receipt by such Fixed Asset Claimholders of such amounts, the purchasing Fixed Asset Claimholders shall pay a supplemental purchase price to the ABL Collateral Agent and Working Capital Facility Lenders Agents, for the benefit of the ABL Claimholders, in respect of their purchase under this Section 8.19 in an amount equal to the portion of the prepayment fee or premium received by the purchasing Fixed Asset Claimholders to which the ABL Claimholders would have been entitled to receive had the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedpurchase under this Section 8.19 not occurred.
(eg) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day periodany one or more of the Fixed Asset Claimholders exercises and consummates the purchase option set forth in this Section 8.19, the Interim Notes Collateral Agent and the Pari Passu (i) each ABL Collateral Agent shall send have the right, but not the obligation, to immediately resign under the Working Capital Facility applicable ABL Credit Agreement, and (ii) the purchasing Fixed Asset Claimholders shall have the right, but not the obligation, to require each ABL Collateral Agent to immediately resign under the irrevocable notice applicable ABL Credit Agreement.
(h) In the event that any one or more of the Interim Notes Collateral Agent’s Fixed Asset Claimholders exercises and the Pari Passu Collateral Agent’s intention to exercise consummates the purchase option given set forth in this Section 8.19, the ABL Claimholders shall retain their indemnification rights under the ABL Credit Agreement for actions or other matters arising on or prior to the date of such purchase.
(i) Interest with respect to the Excess ABL Obligations shall continue to accrue and be payable in accordance with the terms of the ABL Loan Documents, the Excess ABL Obligations shall continue to be secured by the Working Capital Facility Collateral Agent Collateral, and the Excess ABL Obligations shall be paid (or cash collateralized, as applicable) in accordance with the terms of the ABL Loan Documents and this Agreement. Each ABL Claimholder shall continue to have all rights and remedies of a lender under the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further actionABL Loan Documents; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein no ABL Claimholder shall have closed by any right to vote on or otherwise consent to any amendment, waiver, departure from, or other modification of any provision of any ABL Loan Document except that the Outside Closing Date and the Working Capital Facility consent of each ABL Collateral Agent shall have received payment in full be required for (i) those matters that require the agreement of all lenders or all affected lenders under Section 12.1(a)(iii) and 12.1(a)(iv) of the Working Capital Facility Indebtedness ABL Credit Agreement as provided for herein in effect on or before the Outside Closing Date. Nothing contained date hereof and (ii) matters in contravention of the provisions and priorities set forth in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralAgreement.
Appears in 1 contract
Purchase Option. (a) Upon the occurrence and during of the continuance Priority Facility Control Date, any of an Event the Holders or any of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, Lenders shall have the option at any time upon five (5) Business Days’ prior written notice (the “Purchase Notice”) to the Priority Facility Agent to purchase all (but not less than all) of the Priority Facility Obligations from the Priority Facility Lenders. Such Purchase Notice shall be irrevocable. If more than one of the Holders or Working Capital Lenders seeks to exercise its rights to purchase the Priority Facility Obligations under this Section 7.5, then the Holders and the Working Capital Facility Collateral Agent to elect Lenders that have so exercised their right to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion the Priority Facility Obligations pro rata based on the outstanding amount of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim their Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and/or Loans and is received by the Working Capital Facility Collateral Agent prior to the expiration Letters of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6Credit.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Purchase Notice (which shall be not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days twenty days, after the receipt by the Working Capital Priority Facility Collateral Agent of the Exercise Purchase Notice, and ) the Holders and/or Working Capital Lenders (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing DatePurchasing Party”))) shall purchase from the Priority Facility Lenders, and the Working Capital Facility Collateral Agent and Working Capital Priority Facility Lenders shall sell to the Interim Notes Collateral Purchasing Party, the Priority Facility Obligations, provided that the Priority Facility Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Priority Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, Company and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleGuarantors.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Purchasing Party shall (i) pay to the Working Capital Priority Facility Collateral Agent, for the benefit of Working Capital the Priority Facility Lenders, Lenders as the purchase price therefore, therefore the full amount of the respective Purchasable Portion of all the Working Capital Priority Facility Indebtedness Obligations then outstanding and unpaid (including principal, interest (including default interest), fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding expenses, any early termination applicable exit fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or and any other Working Capital Facility Documentamounts due thereunder), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, York as the Working Capital Priority Facility Collateral Agent Agent, may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time)purpose.
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise any selling party and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lendersof any kind, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders selling party shall represent and warrant: warrant (ia) the amount of the Working Capital Priority Facility Indebtedness Obligations being purchasedpurchased from it, (iib) that such selling party will transfer the Working Capital Priority Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness Obligations free and clear of any Liens or encumbrances encumbrances, and (iiic) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have that such selling party has the right to assign the Working Capital such Priority Facility Indebtedness Obligations and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 1 contract
Sources: Priority Facility Agreement (Trico Marine Services Inc)
Purchase Option. The Second Lien Claimholders will have the option, exercisable (a) Upon the occurrence and during the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time upon five (5) Business Days’ prior written notice to following the Working Capital Facility Collateral Agent to elect to purchase a portion occurrence of the Working Capital Facility Indebtedness from “Amortization Period” (as such term is defined in the Working Capital Facility Lenders, ratably First Lien Credit Agreement) and prior to receipt of the Purchase Notice referred to in proportion to the outstanding Obligations of each outstanding Series of Secured Debt Section 3.1(b) or (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”b) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days Business Days following receipt of the information Purchase Notice, to purchase all, but not less than all, of the First Lien Obligations, without warranty, representation or recourse of any kind (except for representations and warranties required to be delivered made by assigning banks pursuant to clauses the “Assignment and Acceptance” (aas such term is defined in the First Lien Credit Agreement)). The purchase price for any such purchase shall be equal to the aggregate outstanding amount of First Lien Obligations due and payable on the closing date of such purchase (including, without limitation, accrued interest, fees, costs, indemnities and expenses) and (b) shall be payable all in cash in immediately available funds. If one or more of the definition Second Lien Claimholders choose to exercise such right, each of “Qualified Indemnification Claim” to revoke them must irrevocably notify the First Lien Agent thereof (and any such election to purchase such portion notice given following delivery of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Purchase Notice (which shall not must be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) given within ten (10) days after Business Days following the date of the Purchase Notice), and the parties shall endeavor to close promptly thereafter, but in any event within ten (10) Business Days following notice of the exercise of the Second Lien Claimholders’ purchase right (the “Purchase Period”). Each Second Lien Claimholder that gives notice of its intention to exercise its purchase right shall concurrently provide a copy of such notice to the Second Lien Agent and the other Second Lien Claimholders. If more than one Second Lien Claimholder elects to exercise its purchase option in accordance with this Section 3.4, the First Lien Obligations shall be purchased by such Second Lien Claimholders on a pro rata basis according to the amount of Second Lien Obligations owing to each Second Lien Claimholder that has exercised its purchase right relative to the aggregate amount of Second Lien Obligations owing to all Second Lien Claimholders that have exercised their purchase right. If any Second Lien Claimholders choose to exercise their purchase right, such purchase shall be effected pursuant to documentation mutually acceptable to each of the First Lien Agent and the Second Lien Agent (and, in the event more than one Second Lien Claimholder has exercised its purchase right, in a single closing). If the Second Lien Claimholders elect not to exercise their purchase right under this Section 3.4 following receipt of the Purchase Notice (or do not irrevocably provide notice of such exercise within the required timeframe or close the purchase within the Purchase Period, unless such failure is to due solely to breach by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, First Lien Claimholders of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)this Agreement), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders First Lien Claimholders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders have no further obligations pursuant to this Section 3.4. Each Second Lien Claimholder which exercises its purchase right hereunder agrees to indemnify the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents First Lien Claimholders from and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in against any loss, costliability, claim, damage or expense (including including, without limitation, reasonable attorneys’ fees and expenses of legal expensescounsel) to arising out of any claim asserted by a third party against the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will First Lien Claimholders as a direct result of any acts by such Second Lien Claimholder occurring after the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect date of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time)purchase.
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 1 contract
Purchase Option. (a) Upon Notwithstanding anything in this Agreement to the occurrence and during contrary, on or at any time after (i) the continuance commencement of an Event Insolvency or Liquidation Proceeding or (ii) the acceleration of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) daysPriority Lien Obligations, the Interim Notes Collateral Agent on behalf holders of the Interim Indenture Notes Noteholders, and each of their respective designated Affiliates (the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall “Purchasers”) will have the right, at their sole option and election (but will not be obligated), at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect Priority Lien Agent, to purchase from the Priority Lien Secured Parties all (but not less than all) Priority Lien Obligations (including unfunded commitments) that are outstanding on the date of such purchase. Promptly following the receipt of such notice, the Priority Lien Agent will deliver to the Trustee a portion statement of the Working Capital Facility Indebtedness from amount of Priority Lien Debt and other Priority Lien Obligations then outstanding and the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt amount of the information required cash collateral requested by the Priority Lien Agent to be delivered pursuant to clauses Section 3.06(b)(ii) below. The right to purchase provided for in this Section 3.06 will expire unless, within 10 Business Days after the receipt by the Trustee of such notice from the Priority Lien Agent, the Trustee delivers to the Priority Lien Agent an irrevocable commitment of the Purchasers to purchase all (a) and (bbut not less than all) of the definition of “Qualified Indemnification Claim” Priority Lien Obligations (including unfunded commitments) and to revoke otherwise complete such election to purchase such portion of on the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights terms set forth under this Section 5.63.06.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent Trustee (on behalf of the Purchasers) in its respective Exercise Notice such irrevocable commitment (which shall not be less than five (5) Business Days nor more than 20 Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Priority Lien Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)irrevocable commitment), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, Purchasers all (but not less than all) Priority Lien Obligations (including unfunded commitments) that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon are outstanding on the date of such purchase sale, subject to any required approval of any Governmental Authority then in effect, if any, and only if on the date of such sale, the Interim Notes Collateral Priority Lien Agent and/or receives the Pari Passu Collateral Agent, as applicable, shall following:
(i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenderspayment, as the purchase price thereforefor all Priority Lien Obligations sold in such sale, of an amount equal to the full amount of the respective Purchasable Portion all Priority Lien Obligations (other than outstanding letters of all the Working Capital Facility Indebtedness credit) then outstanding and unpaid (including principal, interest, fees and expensesfees, including reasonable attorneys’ fees and legal expenses expenses, but excluding any early termination fee contingent indemnification obligations for which no claim or prepayment penalty demand for payment has been made at or premium payable pursuant prior to such time); provided that in the case of Hedging Obligations that constitute Priority Lien Obligations the Purchasers shall cause the applicable Secured Swap Contracts to be assigned and novated or, if such Secured Swap Contracts have been terminated, such purchase price shall include an amount equal to the Working Capital Facility Agreement or sum of any other Working Capital Facility Document)unpaid amounts then due in respect of such Hedging Obligations, calculated using the market quotation method and after giving effect to any netting arrangements;
(ii) furnish a cash collateral to the Working Capital Facility Collateral Agent deposit in such amounts amount as the Working Capital Facility Collateral Priority Lien Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with payment of any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit constituting Priority Lien Obligations that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent may become due and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor payable after such sale (but not in any event in an amount greater than 110% one hundred five percent (105%) of the amount then reasonably estimated by the Priority Lien Agent to be the aggregate undrawn face outstanding amount of such letters of creditcredit at such time), which cash collateral shall be (A) held by the Priority Lien Agent as security solely to reimburse the issuers of such letters of credit that become due and payable after such sale and any fees and expenses incurred in connection with such letters of credit and (B) returned to the Trustee (except as may otherwise be required by applicable law or any order of any court or other Governmental Authority) promptly after the expiration or termination from time to time of all payment contingencies affecting such letters of credit; and
(iii) agree to reimburse any agreements, documents or instruments which the Working Capital Facility Collateral Priority Lien Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as may reasonably request pursuant to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment Trustee and (iv) agree to reimburse the Working Capital Facility Collateral Purchasers in such sale expressly assume and adopt all of the obligations of the Priority Lien Agent and Working Capital Facility Lenders the Priority Lien Secured Parties under the Priority Lien Documents on and after the date of the purchase and sale and the Trustee (or any other representative appointed by the holders of a majority in respect aggregate principal amount of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense the Indenture Notes then outstanding) becomes a successor agent thereunder.
(including reasonable attorneys’ fees c) Such purchase of the Priority Lien Obligations shall be made on a pro rata basis among the holders of the Indenture Notes (and legal expensestheir respective designated Affiliates) giving notice to the Working Capital Facility Collateral Priority Lien Agent and Working Capital Facility Lenders; provided, that (A) in no event will of their interest to exercise the Interim purchase option hereunder according to each such holder’s portion of the Indenture Notes Collateral Agent or Interim Notes Noteholders, outstanding on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess date of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligationspurchase. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Priority Lien Agent in New York, New York, as the Working Capital Facility Collateral Priority Lien Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent Trustee for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to to, but excluding excluding, the Business Day on which such purchase and sale shall occur occurs if the amounts so paid by the Interim Trustee and holders of the Indenture Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account prior to 1:00 p.m. (12:00 noon, New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim trustee and holders of the Indenture Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account later than 1:00 p.m. (12:00 noon, New York City time).
(d) Such purchase sale shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties as to the Working Capital Facility Indebtedness Priority Lien Obligations, the Collateral or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lendersany Priority Lien Secured Party, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall represent and warrantwarrant severally as to the Priority Lien Obligations then owing to it: (i) the amount of the Working Capital Facility Indebtedness being purchased, that such applicable Priority Lien Secured Party own such Priority Lien Obligations; and (ii) that such applicable Priority Lien Secured Party has the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens necessary corporate or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right other governing authority to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedsuch interests.
(e) The Working Capital Facility After such sale becomes effective, the outstanding letters of credit will remain enforceable against the issuers thereof and will remain secured by the Priority Liens upon the Collateral Agent agrees that it shall give in accordance with the Interim Notes Collateral Agent applicable provisions of the Priority Lien Documents as in effect at the time of such sale, and the Pari Passu Collateral Agent five (5) Business Days prior written notice issuers of its intention to commence the exercise letters of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send credit will remain entitled to the Working Capital Facility Collateral Agent the irrevocable notice benefit of the Interim Notes Priority Liens upon the Collateral Agent’s and sharing rights in the Pari Passu Collateral Agent’s intention proceeds thereof in accordance with the provisions of the Priority Lien Documents as in effect at the time of such sale, as fully as if the sale of the Priority Lien Debt had not been made, but only the Person or successor agent to exercise whom the purchase option given by Priority Liens are transferred in such sale will have the Working Capital Facility Collateral Agent right to foreclose upon or otherwise enforce the Priority Liens and only the Purchasers in the sale will have the right to direct such Person or successor as to matters relating to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full enforcement of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralPriority Liens.
Appears in 1 contract
Sources: Intercreditor Agreement (Rentech Nitrogen Partners, L.P.)
Purchase Option. (a) Upon the occurrence and during the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, Seragen shall have the option right, exercisable in its discretion at any time upon five during the four (54) Business Days’ prior year period following the date of this Agreement, to purchase all (but not less than all) of Service Provider's assets at a purchase price in cash equal to the "Purchase Price" (as determined in accordance with Section 7.03). If Seragen desires to exercise its purchase right, it shall do so by providing written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent Service Provider on or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration fourth anniversary of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6date hereof.
(b) On The closing of any such purchase by Seragen shall be held at the date specified by principal office of Seragen at 11:00 A.M. local time on the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice ninetieth (which shall not be less than five (590th) Business Days, nor more than the later of (i) thirty (30) days day after the receipt by Service Provider of Seragen's election to exercise its purchase option, or at such other time and place as the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell parties to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agenttransaction may agree. At such closing, Service Provider shall deliver such instruments of sale and assignment as Seragen shall reasonably require, accompanied by all requisite transfer taxes, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights assets to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral transferred shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens liabilities, obligations, liens, claims, options, charges, encumbrances, or encumbrances rights of others (except for any liens, claims, options, charges, encumbrances, or rights of others assumed by Service Provider from Seragen in connection with the transactions contemplated by the Asset Purchase Agreement) and (iii) the Working Capital Facility Collateral Agent Service Provider shall so represent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness warrant, and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees further represent and warrant that it is the holder of all right, title and interest in the assets being transferred. Seragen shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right deliver at such closing, by certified or remedy against the Shared Collateral. In the event that during such five Business Day periodofficial bank check, the Interim Notes Collateral Agent and purchase price for the Pari Passu Collateral Agent assets. Both parties to thetransaction shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent execute such additional documents as are otherwise appropriate. Seragen shall not commence be required to assume any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale liabilities with respect to the Working Capital Facility Indebtedness provided purchased assets, except for herein shall have closed liabilities arising after the closing date under written contracts assumed by Seragen and for any liens, claims, options, charges, encumbrances, or rights of others assumed by Service Provider from Seragen in connection with the transactions contemplated by the Outside Closing Date Asset Purchase Agreement. Service Provider shall fully cooperate in obtaining all third party consents required, and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agentall other actions reasonably requested by Seragen, in its good faith judgment, deems such action to be necessary to preserve or protect connection with the Shared Collateraltransaction.
Appears in 1 contract
Sources: Service Agreement (Seragen Inc)
Purchase Option. (a) Upon the occurrence and during the continuance continuation of an Event a Triggering Event, then, in any such case, any one or more of Default Term Loan Claimholders (acting in their individual capacity or an event of default under the Working Capital Facility Documents that is not cured through one or waived within thirty (30more affiliates) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time right, but not the obligation (each Term Loan Claimholder having a ratable right to make the purchase, with each Term Loan Claimholder’s right to purchase being automatically proportionately increased by the amount not purchased by another Term Loan Claimholder), upon five (5) 5 Business Days’ prior Days advance written notice to the Working Capital Facility Collateral Agent to elect to purchase from such Term Loan Claimholders (a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Purchase Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral to ABL Agent, as applicablefor the benefit of ABL Claimholders, to acquire from ABL Claimholders all (but not less than all) of the Working Capital Facility Collateral Agent right, title, and interest of ABL Claimholders in and to the ABL Priority Obligations and the ABL Loan Documents. The Purchase Notice, if given, shall be irrevocable; provided, that . Upon written request of the Interim Notes Collateral Agent or Pari Passu Collateral Term Agent, as applicablethe ABL Agent shall not Exercise any Secured Creditor Remedies (or shall discontinue the exercise of such remedies), shall have the right within ten (10) days following receipt of the information required not release its Liens on any Collateral, or consent to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6Disposition.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Term Agent in its respective Exercise the Purchase Notice (which shall not be less than five (5) Business Days, nor more than the later of ten (i) thirty (3010) days after the receipt by the Working Capital Facility Collateral ABL Agent of the Exercise Purchase Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders ABL Claimholders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, purchasing Term Loan Claimholders and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent purchasing Term Loan Claimholders shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility LendersABL Claimholders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleABL Priority Obligations.
(c) Upon On the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Term Loan Claimholders shall (i) pay to the Working Capital Facility Collateral ABL Agent, for the benefit of Working Capital Facility LendersABL Claimholders, as the purchase price therefore, therefor the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness ABL Obligations (other than the Excess ABL Obligations, any ABL Obligations cash collateralized in accordance with clause (c)(ii) below and other than, to the extent applicable, any prepayment fee, prepayment premium or early termination fee) then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document)unpaid, (ii) furnish cash collateral to the Working Capital Facility Collateral ABL Agent in such amounts as the Working Capital Facility Collateral ABL Agent determines is reasonably necessary to secure the Working Capital Facility Collateral ABL Agent and Working Capital Facility Lenders ABL Claimholders in connection with (A) any issued and outstanding letters Letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor Credit (but not in any event in an amount greater than 110105% of the aggregate undrawn face amount of such letters Letters of credit)Credit) and (B) Bank Product Obligations not in excess of the Bank Product Cap in the manner provided for in the ABL Loan Agreement as in effect on the date hereof, and (iii) agree to reimburse the Working Capital Facility Collateral ABL Agent and Working Capital Facility Lenders ABL Claimholders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or all expenses to the extent caused by earned or resulting from due and payable in accordance with the gross negligence or willful misconduct ABL Loan Documents (including the reimbursement of the Working Capital Facility Collateral Agentactual, as determined by a final non-appealable order of a court of competent jurisdictionreasonable and documented extraordinary expenses, financial examination expenses, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedappraisal fees). Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Term Loan Claimholders to the bank account designated by the Working Capital Facility Collateral ABL Agent are received in such bank account prior to 1:00 p.m. (2:00 p.m., New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, purchasing Term Loan Claimholders to the bank account designated by the Working Capital Facility Collateral ABL Agent are received in such bank account later than 1:00 p.m. (2:00 p.m., New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral ABL Agent and Working Capital Facility Lenders ABL Claimholders as to the Working Capital Facility Indebtedness ABL Obligations so purchased or otherwise and without recourse to the Working Capital Facility Collateral ABL Agent or Working Capital Facility Lendersany ABL Claimholder, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders each ABL Claimholder shall represent and warrant: (i) that the amount quoted by such ABL Claimholder as its portion of the Working Capital Facility Indebtedness being purchasedpurchase price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (ii) that it owns, or has the Working Capital Facility Collateral Agent right to transfer to purchasing Term Loan Claimholders, the rights being transferred, and Working Capital Facility Lenders own the Working Capital Facility Indebtedness (iii) such transfer will be free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedLiens.
(e) The Working Capital Facility Collateral In connection with any purchase of ABL Priority Obligations pursuant to this Section 5.6, each ABL Claimholder and ABL Agent agrees that it to enter into and deliver to the applicable Term Loan Lenders on the purchase date, as a condition to closing, an assignment agreement in a form reasonably acceptable to each Agent and, at the expense of the Obligors (which shall give be added to the Interim Notes Collateral purchase price and constitute a part of such purchased ABL Priority Obligations), the ABL Agent and each other ABL Claimholder shall deliver all possessory collateral (if any), together with any necessary endorsements and other documents (including any applicable stock powers or bond powers), then in its possession or in the Pari Passu Collateral Agent five (5) Business Days prior written notice possession of its intention agent or bailee, or turn over control as to commence any pledged collateral, deposit accounts or securities accounts of which it or its agent or bailee then has control, as the exercise of case may be, to any enforcement right or remedy against Person designated by the Shared Collateral. In Term Agent to act as the event that during such five Business Day period, the Interim Notes Collateral successor ABL Agent and otherwise take such actions as may be reasonably appropriate to effect an orderly transition to any Person designated by the Pari Passu Collateral Term Agent shall send to act as the Working Capital Facility Collateral Agent successor ABL Agent. Upon the irrevocable notice consummation of the Interim Notes Collateral Agent’s and purchase of the Pari Passu Collateral Agent’s intention ABL Priority Obligations pursuant to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral ABL Agent shall not commence be deemed to have resigned as an “agent” or “administrative agent” or “collateral agent” (or any foreclosure or other action to sell or otherwise realize upon similar role) for the Shared Collateral or immediately desist from taking any further actionABL Claimholders under the ABL Loan Documents; provided, provided that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral ABL Agent shall have received payment in full be entitled to all of the Working Capital Facility Indebtedness as provided for herein on rights and benefits of a former “agent” or before “administrative agent” under the Outside Closing DateABL Loan Agreement. Nothing contained in this In the event of the consummation of the purchase option, the Excess ABL Obligations shall be treated pursuant to Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral4.1 hereof.
Appears in 1 contract
Purchase Option. (a) Upon the occurrence and during the continuance continuation of an Event a Triggering Event, then, in any such case, any one or more of Default Second Lien Claimholders (acting in their individual capacity or an event of default under the Working Capital Facility Documents that is not cured through one or waived within thirty (30more affiliates) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time right, but not the obligation (each Second Lien Claimholder having a ratable right to make the purchase, with each Second Lien Claimholder’s right to purchase being automatically proportionately increased by the amount not purchased by another Second Lien Claimholder), upon five (5) 5 Business Days’ prior Days advance written notice to the Working Capital Facility Collateral Agent to elect to purchase from such Second Lien Claimholders (a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Purchase Notice”) from to First Lien Lender, for the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicablebenefit of First Lien Claimholders, to acquire from First Lien Claimholders all (but not less than all) of the Working Capital Facility Collateral Agent right, title, and interest of First Lien Claimholders in and to the First Lien Priority Obligations and the First Lien Loan Documents. The Purchase Notice, if given, shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by in the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Purchase Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days 5 Business Days after the receipt by the Working Capital Facility Collateral Agent First Lien Lender of the Exercise Purchase Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders First Lien Claimholders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, purchasing Second Lien Claimholders and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent purchasing Second Lien Claimholders shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility LendersFirst Lien Claimholders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleFirst Lien Priority Obligations.
(c) Upon On the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Second Lien Claimholders shall (i) pay to the Working Capital Facility Collateral AgentFirst Lien Lender, for the benefit of Working Capital Facility LendersFirst Lien Claimholders, as the purchase price therefore, therefor the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness First Lien Obligations (other than the Excess First Lien Obligations and other than First Lien Obligations cash collateralized in accordance with clause (c)(ii) below) then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document)unpaid, (ii) furnish cash collateral to the Working Capital Facility Collateral Agent First Lien Lender in such amounts as the Working Capital Facility Collateral Agent First Lien Lender determines is reasonably necessary to secure the Working Capital Facility Collateral Agent First Lien Lender and Working Capital Facility Lenders First Lien Claimholders in connection with (A) any issued and outstanding letters Letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor Credit (but not in any event in an amount greater than 110105% of the aggregate undrawn face amount of such letters Letters of creditCredit) and (B) Bank Product Obligations (but not in any event in an amount greater than the Bank Product Reserve), and (iii) agree to reimburse the Working Capital Facility Collateral Agent First Lien Lender and Working Capital Facility Lenders First Lien Claimholders for any checks or other payments provisionally credited all expenses to the Working Capital Facility Indebtednessextent earned or due and payable in accordance with the First Lien Loan Documents (including the reimbursement of extraordinary expenses, and/or as financial examination expenses, and appraisal fees). Anything contained in this paragraph to which the Working Capital Facility Collateral Agent contrary notwithstanding, in the event that (X) purchasing Second Lien Claimholders receive all or Working Capital Facility Lenders has not yet received final payment a portion of any prepayment premium, make-whole obligation or early termination fee payable pursuant to the First Lien Loan Documents in cash, (Y) all First Lien Obligations purchased by such purchasing Second Lien Claimholders and (iv) agree to reimburse all of the Working Capital Facility Collateral Agent Second Lien Obligations, including principal, interest and Working Capital Facility Lenders in respect fees thereon and costs and expenses of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense collection thereof (including reasonable attorneys’ attorneys fees and legal expenses) to the Working Capital Facility Collateral Agent ), are repaid in full in cash, and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1Z) the reasonable costs First Lien Credit Agreement is terminated, in each case, within 180 days following the date on which the purchasing Second Lien Claimholders pay the purchase price described in clauses (i)-(iii) of collection (including reasonable attorneys’ fees and legal expenses) incurred this paragraph, then, within 3 Business Days after receipt by or on behalf such Second Lien Claimholders of such amounts, purchasing Second Lien Claimholders shall pay a supplemental purchase price to First Lien Lender, for the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders benefit of First Lien Claimholders, in respect of such Shared Collateral and (2) any amounts that are required to be turned over their purchase under this Section 5.6 in an amount equal to the Working Capital Facility Collateral Agent portion of the prepayment premium, make-whole obligation or early termination fee received by purchasing Second Lien Claimholders to which First Lien Claimholders would have been entitled to receive had the Working Capital Facility Lenders purchase under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligationsparagraph not occurred. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, First Lien Lender as the Working Capital Facility Collateral Agent First Lien Lender may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent Second Lien Trustee for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Second Lien Claimholders to the bank account designated by the Working Capital Facility Collateral Agent First Lien Lender are received in such bank account prior to 1:00 p.m. (2:00 p.m., New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, purchasing Second Lien Claimholders to the bank account designated by the Working Capital Facility Collateral Agent First Lien Lender are received in such bank account later than 1:00 p.m. (2:00 p.m., New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent First Lien Lender and Working Capital Facility Lenders First Lien Claimholders as to the Working Capital Facility Indebtedness First Lien Obligations so purchased or otherwise and without recourse to the Working Capital Facility Collateral Agent First Lien Lender or Working Capital Facility Lendersany First Lien Claimholder, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders each First Lien Claimholder shall represent and warrant: (i) that the amount quoted by such First Lien Claimholder as its portion of the Working Capital Facility Indebtedness being purchasedpurchase price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (ii) that it owns, or has the Working Capital Facility Collateral Agent right to transfer to purchasing Second Lien Claimholders, the rights being transferred, and Working Capital Facility Lenders own the Working Capital Facility Indebtedness (iii) such transfer will be free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedLiens.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent any one or more of Second Lien Claimholders exercises and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise consummates the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under set forth in this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein (i) First Lien Lender shall have closed by the Outside Closing Date right, but not the obligation, to immediately resign under the First Lien Credit Agreement, and the Working Capital Facility Collateral Agent (ii) purchasing Second Lien Claimholders shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before right, but not the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit obligation, to require First Lien Lender to immediately resign under the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralFirst Lien Credit Agreement.
Appears in 1 contract
Sources: Intercreditor Agreement (Platinum Energy Solutions, Inc.)
Purchase Option. (a) Upon the occurrence and during the continuance continuation of an Event of Default a Triggering Event, then, in any such case, any one or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf more of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee Term Loan Claimholders (acting in their individual capacity or the Interim Notes Collateral Agent, on the through one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, more affiliates) shall have the option at any time right, but not the obligation (each Term Loan Claimholder having a ratable right to make the purchase, with each Term Loan Claimholder’s right to purchase being automatically proportionately increased by the amount not purchased by another Term Loan Claimholder), upon five (5) 5 Business Days’ Days prior written notice to the Working Capital Facility Collateral Agent to elect to purchase from (or on behalf of) such Term Loan Claimholders (a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Purchase Notice”) to ABL Agent to acquire from the Interim Notes Collateral Agent or Pari Passu Collateral AgentABL Claimholders all (but not less than all) of the right, as applicabletitle, and interest of the ABL Claimholders in and to the Working Capital Facility Collateral Agent ABL Priority Debt and the ABL Documents. The Purchase Notice, if given, shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Term Loan Agent in its respective Exercise the Purchase Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days 5 Business Days after the receipt by the Working Capital Facility Collateral ABL Agent of the Exercise Purchase Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders ABL Claimholders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, purchasing Term Loan Claimholders and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent purchasing Term Loan Claimholders shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility LendersABL Claimholders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleABL Priority Debt.
(c) Upon On the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall purchasing Term Loan Claimholders shall
(i) pay to the Working Capital Facility Collateral ABL Agent, for the benefit of Working Capital Facility Lendersthe ABL Claimholders, as the purchase price thereforetherefor, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness ABL Priority Debt, other than indemnification obligations for which no claim or demand for payment has been made at such time, and other than ABL Priority Debt cash collateralized in accordance with clause (c)(ii) below) then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), unpaid,
(ii) furnish cash collateral to the Working Capital Facility Collateral ABL Agent in such amounts as the Working Capital Facility Collateral ABL Agent determines is reasonably necessary to secure the Working Capital Facility Collateral ABL Agent and Working Capital Facility Lenders the ABL Claimholders in connection with respect of (A) any issued and outstanding letters Letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor Credit (but not in any event in an amount greater than 110% the amount required under the ABL Credit Agreement as in effect on the date hereof) of the aggregate undrawn face amount of such letters Letters of credit), Credit) (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited such cash collateral shall be applied to the Working Capital Facility Indebtednessreimbursement of any drawing under a Letter of Credit as and when such drawing is paid and, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect if a Letter of Qualified Indemnification Claims which in fact result in any lossCredit expires undrawn, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received collateral held by the Interim Notes Collateral ABL Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to Letter of Credit shall be turned over remitted to the Working Capital Facility Collateral Term Loan Agent or for the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, benefit of the purchasing Term Loan Claimholders) and (B) Bank Product Obligations (such cash collateral shall be applied to the reimbursement of the Bank Product Obligations as and when such obligations become due and payable and, at such time as all of the Bank Product Obligations are paid in no event shall full, the Interim Notes Collateral remaining cash collateral held by ABL Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than Bank Product Obligations shall be remitted to the Qualified Indemnification ClaimsTerm Loan Agent for the benefit of the purchasing Term Loan Claimholders), and (C) any asserted or threatened (in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losseswriting) claims, demands, actions, suits, proceedings, investigations, liabilities, fines, costs, penalties, or damages or that are the subject of the indemnification provisions of the ABL Credit Agreement (such cash collateral shall be applied to the reimbursement of such obligations as and when they become due and payable and, at such time as all of such obligations are paid in full, the remaining cash collateral held by ABL Agent in respect of indemnification obligations shall be remitted to the Term Loan Agent for the benefit of the purchasing Term Loan Claimholders), in each case in respect of ABL Priority Debt, and
(iii) pay to ABL Agent and the other ABL Claimholders the amount of all expenses to the extent caused by earned or resulting from due and payable in accordance with the gross negligence or willful misconduct ABL Documents (including the reimbursement of the Working Capital Facility Collateral Agentattorneys’ fees, as determined by a final non-appealable order of a court of competent jurisdictionfinancial examination expenses, and appraisal fees) and incurred through the date of such purchase.
(Dd) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in of federal funds to such bank account of the Working Capital Facility Collateral ABL Agent in New York, New York, as the Working Capital Facility Collateral ABL Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Term Loan Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Term Loan Claimholders to the bank account designated by the Working Capital Facility Collateral ABL Agent are received in such bank account prior to 1:00 p.m. (2:00 p.m., New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, purchasing Term Loan Claimholders to the bank account designated by the Working Capital Facility Collateral ABL Agent are received in such bank account later than 1:00 p.m. (2:00 p.m., New York City time).
(de) Anything contained in this paragraph to the contrary notwithstanding, in the event that (i) the purchasing Term Loan Claimholders receive all or a portion of any prepayment premium, make-whole obligation, or early termination fee payable pursuant to any the ABL Documents in cash, (ii) all ABL Debt purchased by such purchasing Term Loan Claimholders including principal, interest and fees thereon and costs and expenses of collection thereof (including reasonable attorneys’ fees and legal expenses), is repaid in full in cash, and (iii) the ABL Credit Agreement is terminated, in each case, within 180 days following the date on which the purchasing Term Loan Claimholders pay the purchase price described in clauses (c)(i)-(iii) of this Section 5.6, then, within 3 Business Days after receipt by such Term Loan Claimholders of such amounts, the purchasing Term Loan Claimholders shall pay a supplemental purchase price to ABL Agent, for the benefit of the ABL Claimholders, in respect of their purchase under this Section 5.6 in an amount equal to the portion of the prepayment premium, make-whole obligation or early termination fee received by the purchasing Term Loan Claimholders to which the ABL Claimholders would have been entitled to receive had the purchase under this Section 5.6 not occurred.
(f) Such purchase shall be effected by the execution and delivery of a customary form of assignment and acceptance agreement and shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral ABL Agent and Working Capital Facility Lenders the other ABL Claimholders as to the Working Capital Facility Indebtedness ABL Debt so purchased, or otherwise otherwise, and without recourse to the Working Capital Facility Collateral ABL Agent or Working Capital Facility Lendersany other ABL Claimholder, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders each ABL Claimholder shall represent and warrant: (i) that the amount quoted by such ABL Claimholder as its portion of the Working Capital Facility Indebtedness being purchasedpurchase price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (ii) that it owns, or has the Working Capital Facility Collateral Agent right to transfer to the purchasing Term Loan Claimholders, the rights being transferred, and Working Capital Facility Lenders own the Working Capital Facility Indebtedness (iii) such transfer will be free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedLiens.
(eg) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice any one or more of the Interim Notes Collateral Agent’s Term Loan Claimholders exercises and the Pari Passu Collateral Agent’s intention to exercise consummates the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under set forth in this Section 5.6, the Working Capital Facility Collateral (i) ABL Agent shall have the right, but not commence the obligation, to immediately resign under the ABL Credit Agreement, and (ii) the purchasing Term Loan Claimholders shall have the right, but not the obligation, to require ABL Agent to immediately resign under the ABL Credit Agreement.
(h) In the event that any foreclosure one or more of the Term Loan Claimholders exercises and consummates the purchase option set forth in this Section 5.6, (i) the ABL Claimholders shall retain their indemnification rights under the ABL Credit Agreement for actions or other action matters arising on or prior to sell the date of such purchase, and (ii) and in the event that, at the time of such purchase, there exists Excess ABL Debt, the consummation of such purchase option shall not include (nor shall the purchase price be calculated with respect to) such Excess ABL Debt (clauses (i) and (ii), the “Retained Interest”).
(i) In the event that a Retained Interest exists, each ABL Claimholder shall, at the request of the purchasing Term Loan Claimholders, execute an amendment to the ABL Credit Agreement acknowledging that such Retained Interest consisting of Excess ABL Debt is a last-out tranche, payable after Payment in Full of ABL Priority Debt and payment in full in cash of all of the Term Loan Priority Debt. Interest with respect to such Retained Interest consisting of Excess ABL Debt shall continue to accrue and be payable in accordance with the terms of the ABL Documents, the Retained Interest shall continue to be secured by the ABL Collateral, and the Retained Interest shall be paid (or otherwise realize upon cash collateralized, as applicable) in accordance with the Shared Collateral or immediately desist from taking any further actionterms of the ABL Credit Agreement and this Agreement. Each ABL Claimholder shall continue to have all rights and remedies of a lender under the ABL Credit Agreement and the other ABL Documents; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein no ABL Claimholder shall have closed by any right to vote on or otherwise consent to any amendment, waiver, departure from, or other modification of any provision of any ABL Document except that the Outside Closing Date and the Working Capital Facility Collateral consent of ABL Agent shall have received payment in full be required for (i) those matters that require the agreement of all lenders under Section 14.1 of the Working Capital Facility Indebtedness ABL Credit Agreement as provided for herein in effect on or before the Outside Closing Date. Nothing contained date hereof and (ii) matters in contravention of the provisions and priorities set forth in this Agreement.
(j) Each ABL Grantor irrevocably consents to any assignment effected to one or more Term Loan Claimholder pursuant to this Section 5.6(e) 5.6 for purposes of all ABL Documents and hereby agrees that no further consent from such ABL Grantor shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateralrequired.
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Purchase Option. (a) Upon Notwithstanding anything in this Agreement to the occurrence and during contrary, on or at any time after (i) the continuance commencement of an Event of Default Insolvency or an event of default under Liquidation Proceeding or (ii) the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf acceleration of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Priority Lien Obligations, as applicable, shall EXXI (the “Second Lien Purchaser”) will have the right, at its sole option and election (but will not be obligated), at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect Priority Lien Agent, to purchase a portion from the Priority Lien Secured Parties all (but not less than all) Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Working Capital Facility Indebtedness from Priority Lien Secured Parties in connection with a DIP Financing that are outstanding on the Working Capital Facility Lenders, ratably in proportion to date of such purchase. Promptly following the outstanding Obligations receipt of each outstanding Series of Secured Debt (in each casesuch notice, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Priority Lien Agent or Pari Passu Collateral Agent, as applicable, will deliver to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt EXXI a statement of the information required amount of Priority Lien Debt, other Priority Lien Obligations and DIP Financing provided by any of the Priority Lien Secured Parties, if any, then outstanding and the amount of the cash collateral requested by the Priority Lien Agent to be delivered pursuant to clauses Section 3.06(b)(ii) below. The right to purchase provided for in this Section 3.06 will expire unless, within 10 Business Days after the receipt by EXXI of such notice from the Priority Lien Agent, EXXI delivers to the Priority Lien Agent an irrevocable commitment of the Second Lien Purchaser to purchase all (a) and (bbut not less than all) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Working Capital Facility Indebtedness; provided, further, that Priority Lien Secured Parties in connection with a DIP Financing and to otherwise complete such revocation is in writing duly signed by purchase on the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights terms set forth under this Section 5.63.06.
(b) On the date specified by EXXI (on behalf of the Interim Notes Collateral Agent or Pari Passu Collateral Agent Second Lien Purchaser) in its respective Exercise Notice such irrevocable commitment (which shall not be less than five (5) Business Days nor more than 20 Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Priority Lien Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)irrevocable commitment), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, Second Lien Purchaser all (but not less than all) Priority Lien Obligations (including unfunded commitments) and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless any loans provided by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events Priority Lien Secured Parties in connection with a DIP Financing that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon are outstanding on the date of such purchase sale, subject to any required approval of any Governmental Authority then in effect, if any, and only if on the date of such sale, the Interim Notes Collateral Priority Lien Agent and/or receives the Pari Passu Collateral Agent, as applicable, shall following:
(i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenderspayment, as the purchase price thereforefor all Priority Lien Obligations sold in such sale, of an amount equal to the full amount of all Priority Lien Obligations (other than outstanding letters of credit as referred to in clause (ii) below) and loans provided by any of the respective Purchasable Portion of all the Working Capital Facility Indebtedness Priority Lien Secured Parties in connection with a DIP Financing then outstanding and unpaid (including principal, interest, fees and expensesfees, including reasonable attorneys’ fees and legal expenses expenses, but excluding any early termination fee contingent indemnification obligations for which no claim or prepayment penalty demand for payment has been made at or premium payable pursuant prior to such time); provided that in the case of Hedging Obligations that constitute Priority Lien Obligations the Second Lien Purchaser shall cause the applicable agreements governing such Hedging Obligations to be assigned and novated or, if such agreements have been terminated, such purchase price shall include an amount equal to the Working Capital Facility Agreement or sum of any other Working Capital Facility Document)unpaid amounts then due in respect of such Hedging Obligations, calculated using the market quotation method and after giving effect to any netting arrangements;
(ii) furnish a cash collateral to the Working Capital Facility Collateral Agent deposit in such amounts amount as the Working Capital Facility Collateral Priority Lien Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with payment of any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit constituting Priority Lien Obligations that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent may become due and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor payable after such sale (but not in any event in an amount greater than 110% one hundred five percent (105%) of the amount then reasonably estimated by the Priority Lien Agent to be the aggregate undrawn face outstanding amount of such letters of creditcredit at such time), which cash collateral shall be (A) held by the Priority Lien Agent as security solely to reimburse the issuers of such letters of credit that become due and payable after such sale and any fees and expenses incurred in connection with such letters of credit and (B) returned to EXXI (except as may otherwise be required by applicable. law or any order of any court or other Governmental Authority) promptly after the expiration or termination from time to time of all payment contingencies affecting such letters of credit; and
(iii) agree any agreements, documents or instruments which the Priority Lien Agent may reasonably request pursuant to reimburse which EXXI and the Working Capital Facility Collateral Second Lien Purchaser in such sale expressly assume and adopt all of the obligations of the Priority Lien Agent and Working Capital Facility Lenders for the Priority Lien Secured Parties under the Priority Lien Documents and in connection with loans provided by any checks of the Priority Lien Secured Parties in connection with a DIP Financing on and after the date of the purchase and sale and EXXI (or any other payments provisionally credited representative appointed by the holders of a majority in aggregate principal amount of the Intercompany Note then outstanding) becomes a successor agent thereunder.
(c) Such purchase of the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing shall be made by EXXI giving notice to the Working Capital Facility Indebtedness, and/or as Priority Lien Agent of its interest to which exercise the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligationspurchase option hereunder. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Priority Lien Agent in New York, New York, as the Working Capital Facility Collateral Priority Lien Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent EXXI for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur occurs if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, EXXI to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account prior to 1:00 p.m. (12:00 noon, New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, EXXI to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account later than 1:00 p.m. (12:00 noon, New York City time).
(d) Such purchase sale shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties as to the Working Capital Facility Indebtedness Priority Lien Obligations, the Collateral or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lendersany Priority Lien Secured Party, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall represent and warrantwarrant severally as to the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing then owing to it: (i) the amount that such applicable Priority Lien Secured Party own such Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Working Capital Facility Indebtedness being purchased, Priority Lien Secured Parties in connection with a DIP Financing; and (ii) that such applicable Priority Lien Secured Party has the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens necessary corporate or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right other governing authority to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedsuch interests.
(e) The Working Capital Facility After such sale becomes effective, the outstanding letters of credit will remain enforceable against the issuers thereof and will remain secured by the Priority Liens upon the Collateral Agent agrees that it shall give in accordance with the Interim Notes Collateral Agent applicable provisions of the Priority Lien Documents as in effect at the time of such sale, and the Pari Passu Collateral Agent five (5) Business Days prior written notice issuers of its intention to commence the exercise letters of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send credit will remain entitled to the Working Capital Facility Collateral Agent the irrevocable notice benefit of the Interim Notes Priority Liens upon the Collateral Agent’s and sharing rights in the Pari Passu Collateral Agent’s intention proceeds thereof in accordance with the provisions of the Priority Lien Documents as in effect at the time of such sale, as fully as if the sale of the Priority Lien Debt had not been made, but only the Person or successor agent to exercise whom the purchase option given by Priority Liens are transferred in such sale will have the Working Capital Facility Collateral Agent right to foreclose upon or otherwise enforce the Priority Liens and only the Second Lien Purchaser in the sale will have the right to direct such Person or successor as to matters relating to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full enforcement of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing DatePriority Liens. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.ARTICLE IV OTHER AGREEMENTS
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Purchase Option. (a) Upon The Senior Indebtedness Representative, on behalf of itself and the occurrence and during the continuance holders of Senior Indebtedness, agrees that if (i) an Event of Default or an event of default under the Working Capital Facility Senior Revolving Credit Documents that has occurred and is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholderscontinuing, and as a result of such Event of Default under the Pari Passu Senior Revolving Credit Documents (A) the Senior Indebtedness has been accelerated and/or (B) the Majority Lenders are pursuing remedies of foreclosure against the Collateral Agent on behalf of (the Pari Passu Lenders“Trigger Event”), after written demand or (ii) an Insolvency or Liquidation Proceeding is commenced by or against the Trustee Borrower or any other Obligor, then the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, Term Claimholders shall have the right and option to purchase the entire aggregate amount of outstanding Senior Indebtedness (including unfunded commitments) up to, in the case of principal, the First Lien Cap amount, at a price of not less than par, plus all accrued and unpaid interest and fees, together with cash collateral for all outstanding letters of credit in an amount equal to 105% of the undrawn and available amount consistent with all other Senior Revolving Credit Documents of all letters of credit outstanding under the Senior Revolving Credit Documents, and a payment for all then outstanding Eligible Swap Agreements at a price equal to the sum of any time upon five (5) Business Days’ prior unpaid amounts then due in respect of such Eligible Swap Agreements plus or minus a net amount quoted by the Senior Revolving Claimholder party to such Eligible Swap Agreement that would be paid to assign or novate each such Eligible Swap Agreement in the ordinary course of its business. Such sale shall be without warranty or representation or recourse other than as provided in standard LSTA documentation for par trades. To exercise the option following a Trigger Event, the Term Administrative Agent shall deliver a written notice to the Working Capital Facility Collateral Agent Senior Indebtedness Representative and the Senior Revolving Lenders, which notice shall be deemed an irrevocable offer to elect the Senior Revolving Claimholders to purchase a portion of the Working Capital Facility Senior Indebtedness from on the Working Capital Facility Lenders, ratably terms set forth in proportion to the outstanding Obligations of each outstanding Series of Secured Debt this Section (in each case, the “Purchasable PortionPurchase Notice”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On Upon receipt of a Purchase Notice the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice parties to such purchase shall endeavor to close within twenty (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (3020) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and such acceptance (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, such entire period referred to as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing DatePurchase Period”)), . Neither the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Senior Indebtedness Representative nor the Senior Revolving Claimholders shall sell to commence any Enforcement Action during the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable PortionPurchase Period; provided, that (A) however, if, upon expiration of the Working Capital Facility Collateral Agent Purchase Period, the parties to such purchase have not closed the transaction, then the Senior Indebtedness Representative and Working Capital Facility Lenders the holders of Senior Indebtedness shall retain all rights have no further obligations pursuant to be indemnified or held harmless by this Section and may commence any Obligor Enforcement Action in their sole discretion in accordance with the terms Senior Revolving Credit Documents and this Agreement; provided that if during the Purchase Period, a Senior Revolving Claimholder determines Exigent Circumstances exist, (A) it may or may direct the Senior Indebtedness Representative to take appropriate Enforcement Actions to preserve the value of the Working Capital Facility Documents as Collateral or the amount which could reasonably be expected to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, be recovered thereon and (B) nothing contained in clause (A) above shall restrict or limit prevent the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to of a Swap Agreement and the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such netting of amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders due in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time)thereof.
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
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Purchase Option. Contingent upon Tenant being in full compliance with all of its obligations and duties under this Lease, Tenant (aor Tenant's nominee), at any time following the Commencement Date provided that Landlord has completed construction of the Building, shall have a one-time option ("Option") Upon to purchase the occurrence Leased Premises for cash in the amount ("Required Amount") determined by Landlord as representing the fair market value of the Leased Premises. Tenant shall exercise the Option by written notice ("Initial Notice") to Landlord of Tenant's election to purchase the Leased Premises, subject, however, to Tenant's approval of the Required Amount or Landlord and during the continuance of Tenant agreeing upon an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived alternate purchase price ("Negotiated Amount") within thirty (30) days, the Interim Notes Collateral Agent on behalf days following Tenant's delivery of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf Initial Notice. Within fifteen (15)business days following Landlord's receipt of the Pari Passu LendersInitial Notice, after written demand by Landlord will submit the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, Required Amount in writing ("Landlord's Notice") to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, Tenant. Tenant shall have the option at any time upon five fifteen (515) Business Days’ prior written notice to the Working Capital Facility Collateral Agent business days following receipt of Landlord's Notice in which to elect to purchase a portion the Leased Premises for the Required Amount or Negotiated Amount by written notice thereof ("Second Notice") to Landlord. If Tenant delivers the Second Notice, Landlord will prepare an ▇▇▇▇▇▇▇ money contract ("Contract") for Tenant's approval conveying the Leased Premises in its "as-is" "where-is" condition, subject to all matters then of record, other than liens voluntarily created by Landlord which shall be discharged at closing, and subject to this Lease. If Tenant does not timely deliver the Second Notice, or if Landlord and Tenant are unable to agree upon the Negotiated Amount or the form of the Working Capital Facility Indebtedness from Contract within fifteen (15) business days following Landlord's delivery of the Working Capital Facility Lendersproposed Contract to Tenant, ratably in proportion Tenant's Option shall be deemed canceled and of no further force and effect. Time is of the essence with respect to the outstanding Obligations exercise of each outstanding Series the Option. If Tenant exercises the Option, Tenant shall be responsible for paying all closing costs, including the premium for the owner's title policy and all costs and fees in connection with any loan obtained by Tenant to acquire the Leased Premises, but not Landlord's cost of Secured Debt releasing any liens voluntarily created by Landlord, including recording fees with respect thereto. Notwithstanding anything contained in this Article XXV to the contrary, in the event that Landlord desires to sell the Leased Premises subject to this Lease, Landlord may, but shall not be obligated to, first offer to sell the Leased Premises to Tenant for any price and terms acceptable to Landlord in its sole and exclusive discretion (in each case, the “Purchasable Portion”"Proposed Price"). Such notice (an “Exercise Notice”) from If Landlord elects to offer the Interim Notes Collateral Agent or Pari Passu Collateral AgentLeased Premises for sale to Tenant, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, Tenant shall have the right within ten fifteen (1015) business days following receipt of an ▇▇▇▇▇▇▇ money contract ("Offer Contract") covering the information required Leased Premises to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election elect to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor Leased Premises in accordance with the terms of the Working Capital Facility Documents as Offer Contract. If Purchaser fails or refuses to actions timely exercise this option ("Offer Option") to purchase the Leased Premises, then the Option in favor of Tenant shall be canceled and of no further force and effect. Any transfer of the Leased Premises by Landlord to an affiliated entity for tax or events that occurred or did estate planning purposes shall not occur prior obligate Landlord to offer the Leased Premises to Tenant, but such transfer and conveyance shall be subject to the terms of this Article XXV. No real estate commission shall be payable with respect to Tenant's acquisition of the Property from Landlord. The closing of the of purchase, if Tenant elects to exercise the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict Option or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral AgentOffer Option, as applicable, shall be not more than thirty (i30) pay to days following the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount execution of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee Contract or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral AgentOffer Contract, as applicable, net between Landlord and Tenant. EXECUTED in multiple counterparts, each having the force and effect of an original, on January 25, 1999. CLAY DEVELOPMENT & CONSTRUCTION, INC., a Texas corporation By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Title: Vice President LANDLORD Horizon High Reach, Inc., a ______corporation By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Title: General Manager - Vice President TENANT Exhibit "B" PLOT PLAN SHOWING LOCATION OF LEASED PREMISES Exhibit "A" LEGAL DESCRIPTION OF LAND (1LAND ON WHICH BUILDING WILL BE SITUATED) Exhibit "C" LANDLORD'S WORK Landlord's obligation to perform construction work at the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over Leased Premises is limited to the Working Capital Facility Collateral Agent or work described in the Working Capital Facility Lenders under this Agreementfollowing plans and specifications: NOTABLE EASEMENTS, including pursuant to Section 6.6PIPELINES AND OTHER IMPEDIMENTS TO THE LAND EXHIBIT "D" EXHIBIT "E" ESTOPPEL CERTIFICATE Re: Lease between Clay Development & Construction, Inc. (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time"Landlord") and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral AgentHORIZON HIGH REACH, as applicableINC. ("Tenant") dated December __, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. 1998 (New York City time).
(d"Lease") Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by land and building located at ________________________ _________________________in _________, Texas (the Outside Closing Date "Premises") Gentlemen: We, the undersigned Tenant, under the Lease described above (the "Lease"), certify to ___________________ and its successors and assigns as the Working Capital Facility Collateral Agent shall have received payment in full prospective purchaser of the Working Capital Facility Indebtedness Premises ("Purchaser"), the following:
1. Attached hereto as provided for herein on Exhibit "A" is a true, correct, and complete copy of the Lease, including all amendments, exhibits, and Addenda thereto.
2. There has not been a cancellation, modification, assignment, renewal, extension, or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action amendment to the extent that Lease, except the Working Capital Facility Collateral Agent, following (true and correct copies of all of which are attached hereto and initialed by Tenant): 3. All of the Base Rent and Initial Estimate of Monthly Taxes and Insurance Payment provided in its good faith judgment, deems such action the Lease to be necessary to preserve or protect the Shared Collateralpaid has been paid through ___________________, 1999.
Appears in 1 contract
Purchase Option. (a) Upon The Senior Indebtedness Representative, on behalf of itself and the occurrence and during the continuance holders of Senior Indebtedness, agrees that if (i) an Event of Default or an event of default under the Working Capital Facility Senior Revolving Credit Documents that has occurred and is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholderscontinuing, and as a result of such Event of Default under the Pari Passu Senior Revolving Credit Documents (A) the Senior Indebtedness has been accelerated and/or (B) the Required Lenders are pursuing remedies of foreclosure against the Collateral Agent on behalf of (the Pari Passu Lenders“Trigger Event”), after written demand or (ii) an Insolvency or Liquidation Proceeding is commenced by or against the Trustee Borrower or any other Obligor, then the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, Term Claimholders shall have the right and option to purchase the entire aggregate amount of outstanding Senior Indebtedness (including unfunded commitments), at a price of not less than par, plus all accrued and unpaid interest and fees, together with cash collateral for all outstanding letters of credit in an amount equal to 105% of the undrawn and available amount consistent with all other Senior Revolving Credit Documents of all letters of credit outstanding under the Senior Revolving Credit Documents, and a payment for all then outstanding Eligible Swap Agreements at a price equal to the sum of any time upon five (5) Business Days’ prior unpaid amounts then due in respect of such Eligible Swap Agreements plus or minus a net amount quoted by the Senior Revolving Claimholder party to such Eligible Swap Agreement that would be paid to assign or novate each such Eligible Swap Agreement in the ordinary course of its business. Such sale shall be without warranty or representation or recourse other than as provided in standard LSTA documentation for par trades. To exercise the option following a Trigger Event, the Term Administrative Agent shall deliver a written notice to the Working Capital Facility Collateral Agent Senior Indebtedness Representative and the Senior Revolving Lenders, which notice shall be deemed an irrevocable offer to elect the Senior Revolving Claimholders to purchase a portion of the Working Capital Facility Senior Indebtedness from on the Working Capital Facility Lenders, ratably terms set forth in proportion to the outstanding Obligations of each outstanding Series of Secured Debt this Section (in each case, the “Purchasable PortionPurchase Notice”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On Upon receipt of a Purchase Notice the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice parties to such purchase shall endeavor to close within twenty (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (3020) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and such acceptance (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, such entire period referred to as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing DatePurchase Period”)), . Neither the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Senior Indebtedness Representative nor the Senior Revolving Claimholders shall sell to commence any Enforcement Action during the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable PortionPurchase Period; provided, that (A) however, if, upon expiration of the Working Capital Facility Collateral Agent Purchase Period, the parties to such purchase have not closed the transaction, then the Senior Indebtedness Representative and Working Capital Facility Lenders the holders of Senior Indebtedness shall retain all rights have no further obligations pursuant to be indemnified or held harmless by this Section and may commence any Obligor Enforcement Action in their sole discretion in accordance with the terms Senior Revolving Credit Documents and this Agreement; provided that if during the Purchase Period, a Senior Revolving Claimholder determines Exigent Circumstances exist, (A) it may or may direct the Senior Indebtedness Representative to take appropriate Enforcement Actions to preserve the value of the Working Capital Facility Documents as Collateral or the amount which could reasonably be expected to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, be recovered thereon and (B) nothing contained in clause (A) above shall restrict or limit prevent the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to of a Swap Agreement and the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such netting of amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders due in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time)thereof.
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 1 contract
Sources: Intercreditor Agreement (Starboard Resources, Inc.)
Purchase Option. (a) Upon Notwithstanding anything in this Agreement to the occurrence and during contrary, on or at any time after (i) the continuance commencement of an Event of Default Insolvency or an event of default under Liquidation Proceeding or (ii) the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf acceleration of the Interim Notes NoteholdersPriority Lien Obligations, and the Pari Passu Collateral Agent on behalf holders of the Pari Passu Lenders, after written demand by Second Lien Debt and each of their respective designated Affiliates (the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall “Second Lien Purchasers”) will have the right, at their sole option and election (but will not be obligated), at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect Priority Lien Agent, to purchase a portion from the Priority Lien Secured Parties (x) all (but not less than all) Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (y) any loans provided by any of the Working Capital Facility Indebtedness from Priority Lien Secured Parties in connection with a DIP Financing that are outstanding on the Working Capital Facility Lendersdate of such purchase. Promptly following the receipt of such notice, ratably in proportion the Priority Lien Agent will deliver to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt Second Lien Trustee a statement of the information required amount of Priority Lien Debt, other Priority Lien Obligations (other than any Priority Lien Obligations constituting Excess Priority Lien Obligations) and DIP Financing provided by any of the Priority Lien Secured Parties, if any, then outstanding and the amount of the cash collateral requested by the Priority Lien Agent to be delivered pursuant to clauses Section 3.06(b)(ii) below. The right to purchase provided for in this Section 3.06 will expire unless, within 10 Business Days after the receipt by the Second Lien Trustee of such notice from the Priority Lien Agent, the Second Lien Trustee delivers to the Priority Lien Agent an irrevocable commitment of the Second Lien Purchasers to purchase (ax) and all (bbut not less than all) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (y) any loans provided by any of the Working Capital Facility Indebtedness; provided, further, that Priority Lien Secured Parties in connection with a DIP Financing and to otherwise complete such revocation is in writing duly signed by purchase on the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights terms set forth under this Section 5.63.06.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent Second Lien Trustee (on behalf of the Second Lien Purchasers) in its respective Exercise Notice such irrevocable commitment (which shall not be less than five (5) Business Days nor more than 20 Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Priority Lien Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)irrevocable commitment), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, Second Lien Purchasers (x) all (but not less than all) Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (Ay) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless any loans provided by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events Priority Lien Secured Parties in connection with a DIP Financing that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon are outstanding on the date of such purchase sale, subject to any required approval of any Governmental Authority then in effect, if any, and only if on the date of such sale, the Interim Notes Collateral Priority Lien Agent and/or receives the Pari Passu Collateral Agent, as applicable, shall following:
(i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenderspayment, as the purchase price thereforefor all Priority Lien Obligations sold in such sale, of an amount equal to the full amount of (x) all Priority Lien Obligations (other than outstanding letters of credit as referred to in clause (ii) below) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (y) loans provided by any of the respective Purchasable Portion of all the Working Capital Facility Indebtedness Priority Lien Secured Parties in connection with a DIP Financing then outstanding and unpaid (including principal, interest, fees and expensesfees, including reasonable attorneys’ fees and legal expenses expenses, but excluding any early termination fee contingent indemnification obligations for which no claim or prepayment penalty demand for payment has been made at or premium payable pursuant prior to such time); provided that in the case of Hedging Obligations that constitute Priority Lien Obligations the Second Lien Purchasers shall cause the applicable agreements governing such Hedging Obligations to be assigned and novated or, if such agreements have been terminated, such purchase price shall include an amount equal to the Working Capital Facility Agreement or sum of any other Working Capital Facility Document)unpaid amounts then due in respect of such Hedging Obligations, calculated using the market quotation method and after giving effect to any netting arrangements;
(ii) furnish a cash collateral to the Working Capital Facility Collateral Agent deposit in such amounts amount as the Working Capital Facility Collateral Priority Lien Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with payment of any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit constituting Priority Lien Obligations that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent may become due and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor payable after such sale (but not in any event in an amount greater than 110% one hundred five percent (105%) of the amount then reasonably estimated by the Priority Lien Agent to be the aggregate undrawn face outstanding amount of such letters of creditcredit at such time), which cash collateral shall be (A) held by the Priority Lien Agent as security solely to reimburse the issuers of such letters of credit that become due and payable after such sale and any fees and expenses incurred in connection with such letters of credit and (B) returned to the Second Lien Trustee (except as may otherwise be required by applicable law or any order of any court or other Governmental Authority) promptly after the expiration or termination from time to time of all payment contingencies affecting such letters of credit; and
(iii) agree to reimburse any agreements, documents or instruments which the Working Capital Facility Collateral Priority Lien Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as may reasonably request pursuant to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment Second Lien Trustee and (iv) agree to reimburse the Working Capital Facility Collateral Second Lien Purchasers in such sale expressly assume and adopt all of the obligations of the Priority Lien Agent and Working Capital Facility Lenders the Priority Lien Secured Parties under the Priority Lien Documents and in respect connection with loans provided by any of Qualified Indemnification Claims which the Priority Lien Secured Parties in fact result connection with a DIP Financing on and after the date of the purchase and sale and the Second Lien Trustee (or any other representative appointed by the holders of a majority in any loss, cost, damage or expense aggregate principal amount of the Second Lien Indenture Notes then outstanding) becomes a successor agent thereunder.
(c) Such purchase of the Priority Lien Obligations (including reasonable attorneys’ fees unfunded commitments) and legal expenses) any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing shall be made on a pro rata basis among the Second Lien Purchasers giving notice to the Working Capital Facility Collateral Priority Lien Agent and Working Capital Facility Lenders; provided, that (A) in no event will of their interest to exercise the Interim Notes Collateral Agent or Interim Notes Noteholders, purchase option hereunder according to each such Second Lien Purchaser’s portion of the Second Lien Debt outstanding on the one hand, date of purchase or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, portion as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility ObligationsSecond Lien Purchasers may otherwise agree among themselves. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Priority Lien Agent in New York, New York, as the Working Capital Facility Collateral Priority Lien Agent may designate in writing to the Interim Notes Second Lien Collateral Agent and Pari Passu Collateral Agent Trustee for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur occurs if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account prior to 1:00 p.m. (12:00 noon, New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account later than 1:00 p.m. (12:00 noon, New York City time).
(d) Such purchase sale shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties as to the Working Capital Facility Indebtedness Priority Lien Obligations, the Collateral or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lendersany Priority Lien Secured Party, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall represent and warrantwarrant severally as to the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing then owing to it: (i) the amount that such applicable Priority Lien Secured Party owns such Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Working Capital Facility Indebtedness being purchased, Priority Lien Secured Parties in connection with a DIP Financing; and (ii) that such applicable Priority Lien Secured Party has the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens necessary corporate or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right other governing authority to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedsuch interests.
(e) The Working Capital Facility After such sale becomes effective, the outstanding letters of credit will remain enforceable against the issuers thereof and will remain secured by the Priority Liens upon the Collateral Agent agrees that it shall give in accordance with the Interim Notes Collateral Agent applicable provisions of the Priority Lien Documents as in effect at the time of such sale, and the Pari Passu Collateral Agent five (5) Business Days prior written notice issuers of its intention to commence the exercise letters of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send credit will remain entitled to the Working Capital Facility Collateral Agent the irrevocable notice benefit of the Interim Notes Priority Liens upon the Collateral Agent’s and sharing rights in the Pari Passu Collateral Agent’s intention proceeds thereof in accordance with the provisions of the Priority Lien Documents as in effect at the time of such sale, as fully as if the sale of the Priority Lien Debt had not been made, but only the Person or successor agent to exercise whom the purchase option given by Priority Liens are transferred in such sale will have the Working Capital Facility Collateral Agent right to foreclose upon or otherwise enforce the Priority Liens and only the Second Lien Purchasers in the sale will have the right to direct such Person or successor as to matters relating to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full enforcement of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralPriority Liens.
Appears in 1 contract
Purchase Option. The First Lien Agent, on behalf of itself and the First Lien Creditors, agrees that if (ai) Upon the occurrence and during the continuance of an Event of Default or an event of default under the Working Capital Facility First Lien Documents that has occurred and is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholderscontinuing, and as a result of such event of default under the Pari Passu Collateral Agent on behalf of First Lien Documents the Pari Passu LendersFirst Lien Obligations have been accelerated, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, (ii) there is a payment default with respect to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Second Lien Obligations, as applicableor (iii) any Insolvency Proceeding has been commenced (or is then continuing) with respect to any Loan Party under a First Lien Agreement, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase each a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable PortionTrigger Event”). Such notice (an “Exercise Notice”) from , then the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, Second Lien Note Holders shall have the right and option to purchase the entire aggregate amount (but not less than the entire aggregate amount) of outstanding First Lien Obligations (excluding First Lien Excess Obligations) (including unfunded and unterminated commitments) at a price equal to par value of the outstanding principal amount thereof, plus all accrued and unpaid interest, fees and other amounts of First Lien Obligations, together with cash collateral for all outstanding letters of credit in an amount equal to 105% of the undrawn and available amount of such letters of credit outstanding under the applicable First Lien Agreement, and cash collateral for then outstanding Swap Obligations in an amount equal to unpaid amounts then due in respect of such Swap Obligations; provided that in no event will the calculation of the amount of such outstanding First Lien Obligations include any premiums (other than breakage costs). In the event that the amount of cash collateral provided by the Second Lien Note Holders exceeds the actual obligations that such cash collateral is securing, the amount of such excess shall be returned to the Second Lien Note Holders promptly following satisfaction in full of such obligations. Such sale shall be without warranty or representation or recourse other than as provided in standard Loan Syndication Trading Association documentation for par trades. To exercise the option following any Trigger Event, the Second Lien Trustee upon receipt of indemnification in accordance with the Second Lien Indenture from the Purchasing Second Lien Note Holders, together with a written direction from the Second Lien Note Holders holding at least 15% of the principal amount of Second Lien Notes then outstanding (the “Purchasing Second Lien Note Holders”) shall deliver a written notice prepared by and on behalf of such Purchasing Second Lien Note Holders to the First Lien Agent, which notice must be given within ten 60 days after the occurrence of any such Trigger Event and shall be deemed an irrevocable exercise of its option to purchase the First Lien Obligations on the terms set forth in this Section. Upon delivery of such notice, the Purchasing Second Lien Note Holders shall be obligated to purchase (10on a pro rata basis), and the First Lien Creditors shall be obligated to sell, the entire aggregate amount of outstanding First Lien Obligations for the purchase price described in this Section within fifteen (15) days following receipt after delivery of such notice, nor shall the Second Lien Notes Trustee have any responsibility to execute, or liability in connection with, the execution of such purchase. Nothing contained in this Section 2.7 shall limit the ability of the information required First Lien Creditors to be delivered pursuant enforce any of their rights or remedies with respect to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent First Lien Obligations at any time prior to the expiration date of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified purchase by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent Second Lien Noteholders of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor First Lien Obligations in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtednessthis Section 2.7. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in In no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have Second Lien Trustee be obligated to monitor any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time)Trigger Event.
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 1 contract
Sources: Second Lien Intercreditor Agreement
Purchase Option. (a) Upon The First Lien Agent, on behalf of itself and the occurrence and during the continuance of First Lien Creditors, agrees that if an Event of Default or an event of default under the Working Capital Facility First Lien Documents that has occurred and is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholderscontinuing, and as a result of such Event of Default under the Pari Passu Collateral First Lien Documents (i) the First Lien Obligations have been accelerated, (ii) the Second Lien Obligations have been accelerated, (iii) any Insolvency Proceeding has been commenced (or is then occurring) with respect to any Loan Party or (iv) the First Lien Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, (A) is pursuing any Enforcement Action (including foreclosure) with respect to the Company for Collateral or (B) proposes any release, sale or other disposition not otherwise permitted under the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at Second Lien Documents with respect to any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a material portion of the Working Capital Facility Indebtedness from the Working Capital Facility LendersCollateral, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, case of this subsection (iv) that would have the effect of releasing Liens securing the Second Lien Obligations (each a “Purchasable PortionTrigger Event”). Such notice (an “Exercise Notice”) from , then the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, Second Lien Note Holders shall have the right within ten and option to purchase the entire aggregate amount (10but not less than the entire aggregate amount) days of outstanding First Lien Obligations (including unfunded and unterminated commitments) at a price equal to par, plus all accrued and unpaid interest, fees and other amounts (other than contingent indemnification obligations, which obligations shall survive the purchase of the First Lien Obligations by the Second Lien Note Holders) of First Lien Obligations, together with cash collateral for all outstanding Letters of Credit (as defined in the First Lien Agreement) in an amount equal to 105% of the undrawn and available amount of such Letters of Credit outstanding under the First Lien Agreement, and a payment for all then outstanding Hedging Obligations at a price equal to the sum of any unpaid amounts then due in respect of such Hedging Obligations plus or minus a net amount quoted by the First Lien Creditor party to such Hedging Obligation that would be paid to assign or novate each such Hedging Obligation in the ordinary course of its business. Such sale shall be without warranty or representation or recourse other than as provided in standard LSTA documentation for par trades. To exercise the option following any Trigger Event, the Second Lien Trustee upon receipt of indemnification in accordance with Section 7.02(f) under the information required to be delivered pursuant to clauses (a) and (b) Second Lien Indenture, together with a written direction from the Second Lien Note Holders holding a majority of the definition principal amount of Second Lien Notes then outstanding (the “Qualified Indemnification Claim” Majority Second Lien Note Holders”) shall deliver a written notice prepared by and on behalf of such Majority Second Lien Note Holders to revoke the First Lien Agent, which notice must be given within 60 days after the occurrence of any such election Trigger Event and shall be deemed an irrevocable exercise of its option to purchase the First Lien Obligations on the terms set forth in this Section. Upon delivery of such portion notice, the Second Lien Note Holders shall be obligated to purchase, and the First Lien Creditors shall be obligated to sell, the entire aggregate amount of outstanding First Lien Obligations (other than contingent indemnification obligations, which obligations shall survive the purchase of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed First Lien Obligations by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by Second Lien Note Holders) for the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under purchase price described in this Section 5.6.
within twenty (b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (3020) days after delivery of such notice. In the receipt event that the First Lien Obligations are purchased by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor Second Lien Note Holders in accordance with the terms hereof, the First Lien Agent and the First Lien Creditors shall have the right (which shall be exercised within 10 Business Days after the consummation of such purchase) to terminate immediately all banking and other services then being offered to any of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any TrusteeFirst Lien Borrowers, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent Second Lien Borrower or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtednessother Loan Parties. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in In no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have Second Lien Trustee e obligated to monitor any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time)Trigger Event.
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 1 contract
Purchase Option. (a) Upon Within 60 days of the occurrence occurrence, and during the continuance continuation of, a Triggering Event, then, in any such case, any one or more of an Event of Default Second Lien Claimholders (acting in their individual capacity or an event of default under the Working Capital Facility Documents that is not cured through one or waived within thirty (30more affiliates) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time right, but not the obligation (each Second Lien Claimholder having a ratable right to make the purchase, with each Second Lien Claimholder’s right to purchase being automatically proportionately increased by the amount not purchased by another Second Lien Claimholder), upon five (5) 5 Business Days’ prior Days advance written notice to the Working Capital Facility Collateral Agent to elect to purchase from such Second Lien Claimholders (a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Purchase Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral to First Lien Agent, as applicablefor the benefit of First Lien Claimholders, to acquire from First Lien Claimholders all (but not less than all) of the Working Capital Facility Collateral Agent right, title, and interest of First Lien Claimholders in and to the First Lien Priority Obligations and the First Lien Loan Documents. The Purchase Notice, if given, shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by in the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Purchase Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days 5 Business Days after the receipt by the Working Capital Facility Collateral First Lien Agent of the Exercise Purchase Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders First Lien Claimholders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, purchasing Second Lien Claimholders and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent purchasing Second Lien Claimholders shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility LendersFirst Lien Claimholders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleFirst Lien Priority Obligations.
(c) Upon On the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Second Lien Claimholders shall (i) pay to the Working Capital Facility Collateral First Lien Agent, for the benefit of Working Capital Facility LendersFirst Lien Claimholders, as the purchase price therefore, therefor the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness First Lien Obligations (other than the Excess First Lien Obligations) then outstanding and unpaid unpaid, and (ii) agree to reimburse First Lien Agent and First Lien Claimholders for all expenses to the extent earned or due and payable in accordance with the First Lien Loan Documents (including principal, interest, fees and the reimbursement of extraordinary expenses, including reasonable attorneys’ fees financial examination expenses, and legal expenses but excluding appraisal fees). Anything contained in this paragraph to the contrary notwithstanding, in the event that (X) purchasing Second Lien Claimholders receive all or a portion of any prepayment premium, make-whole obligation or early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document)First Lien Loan Documents in cash, (iiY) furnish cash collateral to the Working Capital Facility Collateral Agent in all First Lien Obligations purchased by such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent purchasing Second Lien Claimholders and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents all of the Working Capital Facility Collateral Agent Second Lien Obligations, including principal, interest and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% fees thereon and costs and expenses of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense collection thereof (including reasonable attorneys’ fees and legal expenses), are repaid in full in cash, and (Z) the First Lien Credit Agreement is terminated, in each case, within 180 days following the date on which the purchasing Second Lien Claimholders pay the purchase price described in clauses (i)-(iii) of this paragraph, then, within 3 Business Days after receipt by such Second Lien Claimholders of such amounts, purchasing Second Lien Claimholders shall pay a supplemental purchase price to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral First Lien Agent, as applicablefor the benefit of First Lien Claimholders, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over their purchase under this Section 5.6 in an amount equal to the Working Capital Facility Collateral Agent portion of the prepayment premium, make-whole obligation or early termination fee received by purchasing Second Lien Claimholders to which First Lien Claimholders would have been entitled to receive had the Working Capital Facility Lenders purchase under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligationsparagraph not occurred. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral First Lien Agent in New York, New York, as the Working Capital Facility Collateral First Lien Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent Second Lien Trustee for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, purchasing Second Lien Claimholders to the bank account designated by the Working Capital Facility Collateral First Lien Agent are received in such bank account prior to 1:00 p.m. (2:00 p.m., New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, purchasing Second Lien Claimholders to the bank account designated by the Working Capital Facility Collateral First Lien Agent are received in such bank account later than 1:00 p.m. (2:00 p.m., New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral First Lien Agent and Working Capital Facility Lenders First Lien Claimholders as to the Working Capital Facility Indebtedness First Lien Obligations so purchased or otherwise and without recourse to the Working Capital Facility Collateral First Lien Agent or Working Capital Facility Lendersany First Lien Claimholder, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders each First Lien Claimholder shall represent and warrant: (i) that the amount quoted by such First Lien Claimholder as its portion of the Working Capital Facility Indebtedness being purchasedpurchase price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (ii) that it owns, or has the Working Capital Facility Collateral Agent right to transfer to purchasing Second Lien Claimholders, the rights being transferred, and Working Capital Facility Lenders own the Working Capital Facility Indebtedness (iii) such transfer will be free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedLiens.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent any one or more of Second Lien Claimholders exercises and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise consummates the purchase option given by set forth in this Section 5.6, (i) First Lien Agent shall have the Working Capital Facility Collateral right, but not the obligation, to immediately resign under the First Lien Credit Agreement, and (ii) purchasing Second Lien Claimholders shall have the right, but not the obligation, to require First Lien Agent to immediately resign under the Interim Notes Collateral Agent and Pari Passu Collateral Agent under First Lien Credit Agreement. In this Section 5.6, the Working Capital Facility terms “Second Lien Claimholders” shall refer exclusively to Holders under the Indenture, and shall exclude the Second Lien Trustee and the Second Lien Collateral Agent. In no event shall the Second Lien Trustee or Second Lien Collateral Agent shall not commence have any foreclosure or other action to sell or otherwise realize upon responsibility for the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing obligations contained in this Section 5.6(e) 5.6 (except as explicitly agreed to by the Second Lien Trustee), and in no event shall restrict either the Second Lien Trustee or prohibit the Working Capital Facility Second Lien Collateral Agent from taking action to be responsible for the extent that execution or funding of the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve Purchase Option or protect the Shared Collateralexpenses connected therewith.
Appears in 1 contract
Sources: Intercreditor Agreement (Saratoga Resources Inc /Tx)
Purchase Option. (a) Upon R. Hartslief hereby grants to the occurrence and during the continuance of an Event of Default Company, or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30any designee(s) days, the Interim Notes Collateral Agent on behalf of the Interim Notes NoteholdersCompany (each, and a “Designee”) the Pari Passu Collateral Agent on behalf of the Pari Passu Lendersright to purchase, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time upon five and from time to time on or prior to September 30, 2005 (5the “Option Period”) Business Days’ prior any or all of the Retained Shares at a purchase price of $2.00 per share (the “Per Share Option Price”).The above right may be exercised by the Company and/or any of its Designees, by delivery of written notice to R. Hartslief and Secretary (the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from ), together with the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicabledelivery of a wire transfer, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent R. Hartslief as set forth in New YorkExhibit B attached hereto, New Yorkin immediately available funds, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness aggregate Per Share Option Price for the rights being purchased, so exercised (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear “Aggregate Option Price”). Upon receipt of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness Exercise Notice and the assignment is duly authorized.
Aggregate Option Price, R. Hartslief shall instruct Secretary to deliver to the Company the stock certificate for the Retained Shares, together with appropriate stock powers. The Company shall then deliver the Retained Shares and stock powers to its transfer agent with instructions to deliver certificates for the purchased Retained Shares to the applicable purchaser, and deliver a certificate for any non-purchased Retained Shares to Secretary to be held by Secretary pursuant to the terms and conditions of this Section 4 until the expiration of the Option Period, at which time any Retained Shares not purchased by the Company or its Designees pursuant to this Section 4 (ethe “Unsold Shares”) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention be returned to commence the exercise of any enforcement right or remedy against the Shared CollateralR. Hartslief. In the event that during such five Business Day periodthe stock powers executed by R. Hartslief are not sufficient because of the number of purchasers of Retained Shares, R. Hartslief agrees to deliver to Secretary additional stock powers, executed by R. Hartslief in blank. In the event that there are Unsold Shares following the expiration of the Option Period, the Interim Notes Collateral Agent Company will provide reasonable assistance to R. Hartslief from time to time with respect to administrative and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action ministerial actions necessary for her to sell or otherwise realize upon the Shared Collateral transfer any or immediately desist from taking any further action; providedall of such Unsold Shares, that the purchase and sale with respect including, when appropriate under applicable law, (i) by causing counsel to the Working Capital Facility Indebtedness provided for herein shall have closed by Company to issue the Outside Closing Date and opinion referenced in the Working Capital Facility Collateral Agent shall have received payment in full of legend included on the Working Capital Facility Indebtedness as provided for herein on share certificate that represents the Retained Shares or before the Outside Closing Date. Nothing contained in this Section 5.6(e(ii) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems causing a new certificate without such action a legend to be necessary issued to preserve her
(b) The Company may assign/transfer any or protect the Shared Collateralall of its purchase rights under subsection 4(a) of this Agreement, by written agreement with any person or entity, a copy of which shall be delivered to R. Hartslief and Secretary.
Appears in 1 contract
Sources: Business Relationship Termination Agreement (Dirt Motor Sports Racing Inc)
Purchase Option. (i) Following the occurrence of a Trigger Event, Junior Creditor may at any time following the occurrence of any such Trigger Event, purchase all, but not less than all, of the Senior Indebtedness (the “Purchase Obligations”) for the Purchase Price. Notwithstanding anything in the Senior Loan Documents to the contrary, no consent of any Loan Party to such purchase shall be required. Such purchase will (a) Upon include all principal of, and all accrued and unpaid interest, fees, and expenses in respect of, all Senior Indebtedness, outstanding at the occurrence time of purchase, (2) be made pursuant to an “Assignment and during Assumption” (as such term is defined in the continuance Senior Credit Agreement, but including only those representations and warranties of the assignor thereunder as are specified in Section 25(vi), collectively, an Event “Assignment”), whereby Junior Creditor will assume all funding commitments and Senior Indebtedness of Default or an event of default the Senior Creditors under the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise NoticeSenior Loan Documents, and (ii3) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to otherwise be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell subject to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, terms and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall conditions of this Section 25. Each Senior Creditor will retain all rights to indemnification provided in the relevant Senior Loan Documents for all claims and other amounts relating to facts and circumstances relating to such Senior Creditor’s holdings of the Senior Indebtedness (except to the extent such claims and other amounts were included in the Purchase Price), and such rights shall be secured by the Liens securing the Senior Indebtedness. No amendment, modification or waiver following any purchase under this Section 25 of any indemnification provisions under the Senior Loan Documents shall be effective as to any Senior Creditor or any Related Parties or other related indemnified person of such Senior Creditor (“Indemnified Senior Person”) without the prior written consent of such Indemnified Senior Person, and, subject to any limitations contained in the Senior Loan Documents, such indemnification provisions shall continue in full force and effect for the benefit of the Indemnified Senior Persons whether or held harmless not any Senior Loan Documents otherwise remain in effect.
(ii) Junior Creditor, if it desires to purchase all of the Purchase Obligations, will deliver a written notice (the “Purchase Notice”) to Senior Administrative Agent that (a) is signed by any Obligor the Junior Creditor, (b) states that it is a Purchase Notice under this Section 25, (c) states that Junior Creditor is irrevocably (subject to agreement on the calculation of the Purchase Price) electing to purchase, in accordance with the terms this Section 25, 100% of all of the Working Capital Facility Documents as to actions or events Purchase Obligations, and (d) designates a purchase date (the “Purchase Date”) on which the purchase will occur, that occurred or did is (A) at least three (3) but not occur prior to the closing more than twenty (20) calendar days after Senior Administrative Agent’s receipt of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security thereforPurchase Notice, and (B) nothing contained in clause not more than twenty-five (A25) above calendar days after the Trigger Event. A Purchase Notice will be ineffective if it is received by Senior Administrative Agent after the occurrence giving rise to the Trigger Event is waived, cured, or otherwise ceases to exist. At all times after the Trigger Event until the Senior Administrative Agent shall restrict or limit have received the indemnification rights of any TrusteePurchase Notice, the Interim Notes Collateral Agent, Senior Administrative Agent and the Interim Notes Noteholders, the Pari Passu Collateral Agent Senior Creditors may exercise any and all rights and remedies arising under any Senior Loan Documents or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such saleapplicable law.
(ciii) Upon On the date of such purchase and salePurchase Date, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility LendersJunior Creditor shall, as the purchase price therefore(the “Purchase Price”) for the Purchase Obligations (a) pay to the Senior Administrative Agent in cash an amount equal to all outstanding Senior Indebtedness as of the Purchase Date, (b) with respect to each then outstanding letter of credit, each unterminated Secured Swap Agreement and any other contingent obligations other than contingent obligations to the full extent that no claim giving rise thereto has been asserted (each, a “Contingent Obligation”), deliver to Senior Administrative Agent an amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid cash or cash equivalents necessary (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral as determined by Senior Administrative Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (its sole discretion but not to exceed in any event in an amount greater than 110103% of the aggregate undrawn face amount of such letters Contingent Obligation (in the case of creditany Secured Swap Agreement to be the termination value for such Secured Swap Agreement as of the most recent Business Day for which such amount can be determined) to cash collateralize such Contingent Obligations (or make such other arrangements as are reasonably acceptable to Senior Administrative Agent in its sole discretion to assume any reimbursement obligations relating to such Contingent Obligations), and (iiic) without duplication of the amounts set forth in clause (a), pay to Senior Administrative Agent in cash an amount equal to all outstanding obligations and liabilities in respect of Secured Swap Agreements and Secured Treasury Management Agreements, respectively, (d) without duplication of the amounts set forth in clause (a), pay to Senior Administrative Agent in cash an amount equal to all other asserted valid and enforceable indemnity obligations, and (e) without duplication of the amounts set forth in clause (a), shall agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Senior Creditors for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to resulting from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will granting of provisional credit for checks or other payments credited against the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability Senior Indebtedness for such amounts in excess of the cash proceeds of Shared Collateral which final payment has not yet been received by the Interim Notes Collateral Agent or Senior Creditors.
(iv) On the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6Purchase Date, (Ba) in no event shall Junior Creditor will execute and deliver the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdictionAssignment, and (Db) any amounts reimbursed by Junior Creditor will pay the Interim Notes Collateral Purchase Price to Senior Administrative Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal of immediately available funds to such bank account as determined by Senior Administrative Agent.
(v) Promptly after the closing of the Working Capital Facility Collateral purchase of all Purchase Obligations, Senior Administrative Agent in New York, New York, as will distribute the Working Capital Facility Collateral Agent may designate in writing Purchase Price to the Interim Notes Collateral Senior Creditors in accordance with the terms of the Senior Loan Documents. Senior Administrative Agent and Pari Passu Collateral Agent will apply cash collateral to reimburse the Senior Creditors for such purpose not less than three (3) Business Days prior Contingent Obligations to the date extent such obligations cease being contingent. When all Contingent Obligations have been satisfied or terminated (with the consent of each applicable Senior Creditor), any remaining cash collateral will be returned to the Junior Creditor.
(vi) The Senior Creditors will be entitled to rely on which the statements, representations, and warranties in the Purchase Notice without investigation, even if the Senior Creditors are notified that any such amounts are to statement, representation, or warranty is not or may not be so remittedtrue. Interest shall be calculated to but excluding the Business Day on which such The purchase and sale shall occur if of the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) Purchase Obligations under this Section 25 will be without recourse and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without any representation or warranty of any kind whatsoever by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility LendersSenior Creditors, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders each Senior Creditor shall represent and warrant: warrant that, on the Purchase Date, immediately before giving effect to the purchase, (ia) the amount quoted in writing by the Senior Administrative Agent and such Creditor as its portion of Purchase Obligations represents the amount thereof owing to such Creditor on its books and records, (b) it owns, or has the right to transfer to the Junior Creditor its respective portion of the Working Capital Facility Indebtedness being purchasedPurchase Obligations, and (iic) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness such transfer shall be free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedLiens.
(evii) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice obligations of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention Senior Creditors to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent sell their respective Purchase Obligations under this Section 5.6, the Working Capital Facility Collateral Agent shall 25 are several and not commence any foreclosure or other action joint and several. If a Senior Creditor breaches its obligation to sell its Purchase Obligations under this Section 25 (a “Defaulting Creditor”), then no other Senior Creditor will be obligated to purchase the Defaulting Creditor's Purchase Obligations for resale to Junior Creditor. A Senior Creditor that complies with this Section 25 will not be in default of this Agreement or otherwise realize upon be deemed liable for any action or inaction of any Defaulting Creditor; provided that nothing in this subsection (vii) will affect the Shared Collateral or immediately desist from taking Junior Creditor's obligation to purchase all of the Purchase Obligations.
(viii) Each Credit Party hereby consents to any further action; provided, that assignment effected to the Junior Creditor pursuant to this Section 25.
(ix) Upon consummation of the purchase contemplated by this Section 25, each Issuing Bank (under and sale with respect to as defined in the Working Capital Facility Indebtedness provided for herein Senior Credit Agreement) shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full no obligation to issue, renew or extend any letter of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateralcredit.
Appears in 1 contract
Sources: Intercreditor and Subordination Agreement (BurgerFi International, Inc.)
Purchase Option. (a) Upon the occurrence and during the continuance of an Revolving Facility Event of Default set forth in Section 6.01(a) or an event Section 6.01(f) of default under the Working Capital Revolving Facility Documents that is not cured Credit Agreement and upon receipt by the Term Facility Administrative Agent of notice from the Revolving Facility Administrative Agent of (i) the acceleration of the Revolving Facility Obligations or waived within thirty (30ii) daysthe enforcement of the rights and remedies of the Revolving Facility Collateral Agent or the other Revolving Facility Secured Parties with respect to the Revolving Facility Collateral, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, Term Facility Lenders shall have the option to purchase pursuant to an Assignment and Acceptance all, but not less than all, of the Revolving Facility Obligations outstanding at the time of such purchase or, in the case of the Secured Hedge Agreements, an amount equal to the Agreement Value (as defined in the Revolving Facility Credit Agreement) and all other rights and claims of the Revolving Facility Secured Parties (each of the Revolving Facility Secured Parties so agreeing by its acceptance of the benefits of the Revolving Facility Loan Documents), and, upon any time upon such purchase, such Term Facility Lenders shall assume and the applicable Revolving Facility Lenders shall be relieved of their obligations under the Revolving Facility Loan Documents (including, without limitation, any obligation to advance any further monies or participate in Letters of Credit), for a purchase price equal to the aggregate outstanding principal amount of the Revolving Facility Obligations owing to the Revolving Facility Lenders or, in the case of the Secured Hedge Agreements, an amount equal to the Agreement Value (as defined in the Revolving Facility Credit Agreement), together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Revolving Facility Lenders under the Revolving Facility Loan Documents.
(b) The Term Facility Administrative Agent shall be provided with at least five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of any acceleration or enforcement, of the Working Capital Revolving Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent and shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall during such period have the right within ten (10) days following receipt of the information required option to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than provide five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent ’ prior written irrevocable notice of the Exercise Noticeexercise of its purchase option in connection therewith; provided, and (ii) ten (10) days after receipt by however, in the Interim Notes Collateral event of any Exigent Circumstance that results in any such acceleration or enforcement, the Revolving Facility Administrative Agent or Pari Passu Collateral Agent, as applicable, of the information shall not be required to be delivered pursuant to clauses give such five (a5) Business Days’ notice and (b) of the definition of “Qualified Indemnification Claim” (the later of shall instead give such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agentnotice as soon as practicable, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior after the receipt of such notice to provide written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the of their purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateraloption.
Appears in 1 contract
Purchase Option. (a) Upon If Landlord desires to sell the occurrence and Office Complex (either directly or through the transfer of direct or indirect ownership interests in Landlord (but subject to Section 35.4)) during the continuance of an Term and there exists no monetary Event of Default or an event of default under and the Working Capital Facility Documents that is not cured or waived within thirty Named Tenant and its Affiliates then leases and occupies in the aggregate at least seventy-five percent (3075%) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf rentable area of the Pari Passu LendersOffice Complex, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, Landlord shall have the option at any time upon five (5) Business Days’ prior first provide written notice to the Working Capital Facility Collateral Agent Named Tenant of Landlord’s desire to elect to purchase a portion of sell the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt Office Complex (in each case, the “Purchasable PortionFirst Offer Notice”). Such The First Offer Notice shall contain (a) the purchase price at which Landlord would be willing to sell the Office Complex; and (b) any other major material terms with respect to the proposed sale of the Office Complex, which terms shall be consistent with then current market terms, all as determined by Landlord in its sole, but commercially reasonable, discretion.
(b) Named Tenant shall have ten (10) Business Days after receipt of the First Offer Notice, time being of the essence, in which to give Landlord written notice that the Named Tenant desires to purchase the Office Complex for the purchase price and upon the other terms set forth in the First Offer Notice (an “Exercise Acceptance Notice”) from ). If the Interim Notes Collateral Agent or Pari Passu Collateral AgentNamed Tenant timely gives an Acceptance Notice to Landlord, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt Business Days after the delivery of such Acceptance Notice to Landlord (the “First Deposit Period”), the Named Tenant shall deliver into escrow with a nationally recognized title company selected by Tenant and reasonably acceptable to Landlord (the “Purchase Option Escrow Agent”) a non-refundable deposit in the amount of ten percent (10%) of the information purchase price (the “Deposit”); provided, however, that the Deposit (and all interest earned thereon) will be refundable to the Named Tenant if (i) the Named Tenant delivers written notice to Landlord within ten (10) Business Days after the Named Tenant delivers the Deposit to the Purchase Option Escrow Agent that the Named Tenant did not receive the approval of the Named Tenant’s board of directors and any other required approval(s) for the purchase of the Office Complex (collectively, the “Required Approvals”); or (ii) Landlord fails to satisfy its closing obligations set forth in Section 35.3. If the Named Tenant timely delivers an Acceptance Notice, the parties shall proceed to close on the sale of the Office Complex to the Named Tenant in accordance with Section 35.3, unless the Named Tenant delivers written notice to Landlord within ten (10) Business Days after the Named Tenant delivers the Deposit to the Purchase Option Escrow Agent that the Named Tenant did not receive the Required Approvals (in which event the Deposit and all interest earned thereon shall be delivered pursuant returned to clauses the Named Tenant).
(a) and If (i) Tenant shall fail to timely deliver an Acceptance Notice, or (ii) prior to the expiration of the First Deposit Period referenced in Section 35.1(b), the Named Tenant fails to deliver the Deposit into escrow with the Purchase Money Escrow Agent, or (iii) the Named Tenant fails to obtain all of the Required Approvals in accordance with Section 35.1(b), the Named Tenant shall be deemed to have rejected Landlord’s proposal, in which event the provisions of Section 35.2(b) shall apply.
(b) Following Tenant’s deemed rejection of Landlord’s proposal described in Section 35.2(a) or described in Section 35.2(c), as applicable, Landlord shall be free to sell the definition of “Qualified Indemnification Claim” Office Complex to revoke such election to purchase such portion of the Working Capital Facility Indebtednessany party upon any terms and conditions that Landlord deems acceptable in its sole and absolute discretion; provided, furtherhowever, that such revocation is (i) Landlord shall promptly provide the Named Tenant with a copy of the bid package being given to potential third party purchasers (which shall be consistent in writing duly signed by all material respects with the Interim Notes Collateral Agent terms set forth in the First Offer Notice) and shall otherwise allow the Named Tenant in good faith to participate on an equal footing with others in the bidding process to acquire the Office Complex; and (ii) if Landlord does not execute a contract of sale for the Office Complex and consummate the closing thereunder with a bona fide third-party within nine (9) months after the Named Tenant’s actual or Pari Passu Collateral Agentdeemed rejection of Landlord’s proposal set forth in the First Offer Notice pursuant to Section 35.2(a) or Section 35.2(c), as applicable, and is received by Landlord continues to desire (or at any time thereafter desires) to sell the Working Capital Facility Collateral Agent prior Office Complex, Landlord shall send to the expiration of such ten-day periodNamed Tenant a new First Offer Notice revised to reflect the updated proposed sale terms. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder Named Tenant shall then have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior after receipt of the new First Offer Notice if delivered within eighteen (18) months of the last First Offer Notice sent to the Named Tenant; otherwise, the Named Tenant shall have ten (10) Business Days, time being of the essence, in which to give the Named Tenant’s Acceptance Notice to Landlord. If the Named Tenant timely gives an Acceptance Notice to Landlord, within ten (10) Business Days after the delivery of such Acceptance Notice to Landlord (the “Secondary Deposit Period”), the Named Tenant shall deliver the Deposit into escrow with the Purchase Option Escrow Agent; provided, however, that the Deposit (and all interest accrued thereon) will be refundable to the Named Tenant if (i) the Named Tenant delivers written notice to Landlord within ten (10) Business Days after the Named Tenant delivers the Deposit to the Purchase Option Escrow Agent that the Named Tenant did not receive the Required Approvals; or (ii) Landlord fails to satisfy its closing obligations set forth in Section 35.3. If the Named Tenant timely delivers an Acceptance Notice, the parties shall proceed to close on the sale of the Office Complex to the Named Tenant in accordance with Section 35.3, unless the Named Tenant delivers written notice to Landlord within ten (10) Business Days after the Named Tenant delivers the Deposit to the Purchase Option Escrow Agent that the Named Tenant did not receive the Required Approvals (in which event the Deposit and all interest earned thereon shall be returned to the Named Tenant).
(c) If (i) Named Tenant shall fail to timely deliver an Acceptance Notice following the receipt of the new First Offer Notice described in Section 35.2(b), or (ii) prior to the expiration of the Secondary Deposit Period referenced in Section 35.2(b), the Named Tenant fails to deliver the Deposit into escrow with the Purchase Money Escrow Agent, or (iii) the Named Tenant fails to obtain all of the Required Approvals in accordance with Section 35.2(b), the Named Tenant shall be deemed to have rejected Landlord’s proposal, in which event all of the provisions of Section 35.2(b) shall again apply, and such provisions shall continue to apply (and Tenant’s purchase option pursuant to this Section 35 shall remain in full force and effect) unless and until either (1) Named Tenant shall have purchased the Office Complex pursuant to Section 35.3, or (2) Landlord shall have consummated the closing of the sale of the Office Complex with a bona fide third-party.
35.3 The closing under this Section 35 (the “Closing”) shall be on such date as Landlord and Named Tenant mutually agree, or, absent such agreement, on the date that is thirty (30) days following the date of Tenant’s Acceptance Notice. The Closing shall be conducted through escrow with the Purchase Option Escrow Agent, with all deliveries required pursuant to this Section being made through the Purchase Option Escrow Agent.
(a) At the Closing, Landlord shall: (i) execute and deliver a special warranty deed in the form attached as Schedule 35.3(a)(i), conveying to Named Tenant (or its intention designated Affiliate) good and insurable fee simple title to commence the exercise Office Complex, free and clear of all mortgages, deeds of trust, judgments and other encumbrances (other than the encumbrances existing on the Effective Date, those to which Named Tenant has consented in writing, those created by Named Tenant or those that do not materially adversely affect the use or value of the Office Complex, such as customary utility and similar easements); (ii) execute and deliver a certificate that it is not a foreign Person, plus any other affidavits or instruments reasonably requested by the title company and reasonably approved by Landlord providing Named Tenant’s title insurance, including a customary owner’s affidavit and “gap” indemnity; and (iii) execute and deliver a ▇▇▇▇ of sale in the form attached as Schedule 35.3(a)(iii), conveying to the Named Tenant (or its designated Affiliate) all personal property at the Office Complex owned by Landlord.
(b) At the Closing, Named Tenant shall deliver the purchase price to Landlord (which purchase price shall be the amount set forth in Landlord’s First Offer Notice and accepted in Named Tenant’s Acceptance Notice), via wire transfer of immediately available funds, provided that the Deposit and all interest accrued thereon, shall be delivered to Landlord at Closing and credited against such purchase price.
(c) Landlord and Tenant will each pay their own attorneys’ fees in connection with the Closing. Landlord shall pay the costs of preparing the deed, the costs associated with releasing any financial encumbrances of record and fees charged to record the deed. Landlord shall pay the Commonwealth of Virginia’s grantor’s tax and Named Tenant shall pay all applicable escrow fees charged by any escrow agent and the cost of all transfer and recordation taxes. Title examination, title insurance premiums, survey charges, and the costs and expenses related to any purchase money financing shall be paid by Named Tenant (other than charges related to the release of any enforcement right existing financing liens on the Office Complex, which financing liens Landlord shall cause to be released at or prior to the Closing). All other charges shall be borne by Landlord or Named Tenant as is usual and customary to be borne by seller and purchaser, respectively, in customary transactions.
(d) In the event of a failure to close by reason of Named Tenant’s default, Landlord may retain the Deposit as its sole and exclusive remedy against the Shared Collateralfor such default. In the event that during such five Business Day periodof a failure to close by reason of Landlord’s default, Named Tenant shall have the Interim Notes Collateral Agent right to either (i) receive a return of the Deposit (and all interest accrued thereon) and terminate the Pari Passu Collateral Agent acquisition of the Office Complex (in which event all of the provisions of this Section 35 shall send apply to any subsequent effort of Landlord to sell the Office Complex), or (ii) specifically enforce Landlord’s obligations to sell the Office Complex to Main Tenant in accordance with this Section. If Tenant fails to file an action for specific performance within sixty (60) days after Landlord’s default, Tenant shall be deemed to have elected to proceed under clause (i) above.
35.4 The foregoing and any other provision of this Lease to the Working Capital Facility Collateral Agent contrary notwithstanding, provided that the irrevocable notice transaction is consummated for a legitimate business purpose and not for the purpose of the Interim Notes Collateral Agentcircumventing Tenant’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent rights under this Section 5.635, the Working Capital Facility Collateral Agent rights accorded Tenant under this Section 35 shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale apply with respect to the Working Capital Facility Indebtedness provided for herein following: (i) any transaction entered into with an Affiliate of Landlord or any transaction between any Person that holds (directly or indirectly) an equity or other interests in Landlord or their Affiliates, (ii) a transfer of up to fifty (50%) percent of the ownership or equity interests (directly or indirectly) pertaining to the Office Complex or in Landlord to an unaffiliated third party, (iii) Landlord’s granting any mortgage or other security interest encumbering the Office Complex or encumbering a direct or indirect ownership or equity interest in Landlord, and any foreclosure sale or sale in lieu of foreclosure (or other exercise of remedies) relating to such mortgage, security interest or equity interest, and the initial sale by any party acquiring Landlord’s interest in the Office Complex after any such foreclosure, sale in lieu of foreclosure or other exercise of remedies, (iv) any direct or indirect transfer, sale or pledge (including, without limitation, by way of any merger, consolidation, amalgamation, sale, or other transfer of any kind) of the legal or beneficial interests (including, without limitation, any rights, distributions, profits or proceeds relating thereto), or assets of, the parent entities (or other upper tier level entities) which comprise the indirect members of the Landlord entity, (v) a bona fide portfolio sale of which the Office Complex is a part, (vi) direct or indirect transfer of interests in Landlord in connection with any initial public offering and/or any subsequent public offering or any other transfer of equity interests in Landlord or (vii) any transaction with respect to which Tenant shall have closed failed to avail itself of its rights under this Section (collectively, a “Permitted Landlord Transfer”).
35.5 The foregoing and any other provision of this Lease to the contrary notwithstanding, the provisions of this Section 35 (i) are personal to the Named Tenant and may not be exercised by any other Person (provided that the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full Named Tenant may designate an Affiliate of the Working Capital Facility Indebtedness as provided for herein Named Tenant to take title to the Office Complex in connection with the Named Tenant’s exercise of its rights under this Section 35), (ii) are subject and subordinate to the rights of any present or future Mortgagee or other Person holding a security interest on any direct or before indirect equity interests in Landlord, and (iii) the Outside Closing Date. Nothing contained Named Tenant’s rights granted in this Section 5.6(e35 shall expire upon the earlier to occur of (x) shall restrict the initial sale of the Building by Landlord after the date of this Lease or prohibit (y) any foreclosure sale or sale in lieu of foreclosure (or other exercise of remedies) relating to a Mortgage or equity interest encumbering the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, Building or direct or indirect equity interests in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralLandlord.
Appears in 1 contract
Sources: Deed of Lease (Verisign Inc/Ca)
Purchase Option. (a) Upon After the occurrence expiration of any Standstill Period, but subject to the timing requirements in this Section 3.06, acceleration of the Priority Lien Obligations, each of the holders of the Second Lien Debt and during each of their respective designated Affiliates (such Second Lien Secured Parties exercising the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) dayspurchase option set forth in this Section 3.06, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall “Second Lien Purchasers”) will have the several right, at their respective sole option and election (but will not be obligated), at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect Priority Lien Agent, to purchase a portion from the Priority Lien Secured Parties (A) all (but not less than all) Priority Lien Obligations (including obligations in respect of unfunded commitments) and (B) if applicable, all outstanding loans and all obligations in respect of unfunded commitments (and related obligations, including interest, fees and expenses) provided by any of the Working Capital Facility Indebtedness from the Working Capital Facility LendersPriority Lien Secured Parties in connection with a DIP Financing, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, that are outstanding on the “Purchasable Portion”)date of such purchase. Such notice (an “Exercise Notice”) from Promptly following the Interim Notes Collateral receipt of such notice, the Priority Lien Agent or Pari Passu Collateral Agent, as applicable, will deliver to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt Second Lien Trustee a statement of the information required amount of the Priority Lien Obligations and DIP Financing (including interest, fees, expenses and other obligations in respect of such DIP Financing) provided by any of the Priority Lien Secured Parties, if any, then outstanding and the amount of the cash collateral requested by the Priority Lien Agent to be delivered pursuant to clauses Section 3.06(b)(ii) below. The right to purchase provided for in this Section 3.06 will expire unless, within 10 Business Days after the receipt by the Second Lien Trustee of such written notice from the Priority Lien Agent, the Second Lien Purchasers deliver to the Priority Lien Agent an irrevocable commitment of the Second Lien Purchasers to purchase (aA) all (but not less than all) of the Priority Lien Obligations (including obligations in respect of unfunded commitments) and (bB) if applicable, all loans (and related obligations, including interest, fees and expenses) provided by any of the definition of “Qualified Indemnification Claim” Priority Lien Secured Parties in connection with a DIP Financing and to revoke otherwise complete such election to purchase such portion of on the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights terms set forth under this Section 5.63.06.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent Second Lien Purchasers in its respective Exercise Notice such irrevocable commitment (which shall not be less than five (5) Business Days nor more than 20 Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Priority Lien Agent of such irrevocable commitment), the Exercise Notice, Priority Lien Secured Parties shall sell to the Second Lien Purchasers (i) all (but not less than all) Priority Lien Obligations (including unfunded commitments) and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as if applicable, all loans (and related obligations, including interest, fees and expenses) provided by any of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, Priority Lien Secured Parties in connection with a DIP Financing that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon are outstanding on the date of such purchase sale, subject to any required approval of any Governmental Authority then in effect, if any, and only if on the date of such sale, the Interim Notes Collateral Priority Lien Agent and/or receives the Pari Passu Collateral Agent, as applicable, shall following:
(i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenderspayment, as the purchase price thereforefor all Priority Lien Obligations sold in such sale, of an amount equal to the full amount of (i) all Priority Lien Obligations (other than outstanding letters of credit as referred to in clause (ii) below) and (ii) if applicable, all loans (and related obligations, including interest, fees and expenses) provided by any of the respective Purchasable Portion of all the Working Capital Facility Indebtedness Priority Lien Secured Parties in connection with any DIP Financing then outstanding and unpaid (including principal, interest, fees and expensesfees, including reasonable attorneys’ fees and legal expenses expenses, but excluding any early termination fee contingent indemnification obligations for which no claim or prepayment penalty demand for payment has been made at or premium payable pursuant prior to such time); provided that in the case of Hedging Obligations that are secured by Priority Liens, the Second Lien Purchasers shall cause the applicable Hedge Agreement to be assigned, purchased and novated or, if such Hedge Agreement has been terminated, such purchase price shall include an amount equal to the Working Capital Facility Agreement or sum of any other Working Capital Facility Document)unpaid amounts then due in respect of such Hedge Agreement, calculated using the market quotation method and after giving effect to any netting arrangements;
(ii) furnish a cash collateral to the Working Capital Facility Collateral Agent deposit in such amounts amount as the Working Capital Facility Collateral Priority Lien Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with payment of any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit constituting Priority Lien Obligations that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent may become due and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor payable after such sale (but not in any event in an amount greater than 110% one hundred five percent (105%) of the amount then reasonably estimated by the Priority Lien Agent to be the aggregate undrawn face outstanding amount of such letters of creditcredit at such time), which cash collateral shall be (A) held by the Priority Lien Agent as security solely to reimburse the issuers of such letters of credit that become due and payable after such sale and any fees and expenses incurred in connection with such letters of credit and (B) returned to the Second Lien Trustee (except as may otherwise be required by applicable law or any order of any court or other Governmental Authority) promptly after the expiration or termination from time to time of all payment contingencies affecting such letters of credit;
(iii) agree to reimburse all agreements and documentation required by the Working Capital Facility Collateral Priority Lien Agent and Working Capital Facility Lenders for evidencing its resignation, effective as of the date of such purchase, as agent under the Priority Lien Documents; and
(iv) any checks agreements, documents or other payments provisionally credited to instruments which the Working Capital Facility Indebtedness, and/or as Priority Lien Agent may reasonably request pursuant to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment Second Lien Purchasers in such sale expressly assume and (iv) agree to reimburse adopt all of the Working Capital Facility Collateral obligations of the Priority Lien Agent and Working Capital Facility Lenders the Priority Lien Secured Parties under the Priority Lien Documents and in respect connection with loans (and related obligations, including interest, fees and expenses) provided by any of Qualified Indemnification Claims which the Priority Lien Secured Parties in fact result connection with a DIP Financing on and after the date of the purchase and sale and the Second Lien Trustee (or any other representative appointed by Second Lien Purchasers holding a majority in any loss, cost, damage or expense aggregate principal amount of the all Second Lien Obligations then outstanding) becomes a successor agent thereunder.
(c) Such purchase of the Priority Lien Obligations (including reasonable attorneys’ fees unfunded commitments) and legal expenses) any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing shall be made on a pro rata basis among the Second Lien Purchasers according to each such Second Lien Purchaser’s portion of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, Second Lien Obligations outstanding on the one hand, date of purchase or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, portion as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility ObligationsSecond Lien Purchasers may otherwise agree among themselves. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Priority Lien Agent in New York, New York, as the Working Capital Facility Collateral Priority Lien Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent Second Lien Purchasers for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur occurs if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account prior to 1:00 p.m. (12:00 noon, New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account later than 1:00 p.m. (12:00 noon, New York City time).
(d) Such purchase sale shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties as to the Working Capital Facility Indebtedness Priority Lien Obligations, the Collateral or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lendersany Priority Lien Secured Party, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall represent and warrantwarrant severally as to the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing then owing to it: (i) the amount that such applicable Priority Lien Secured Party owns or holds (directly or indirectly) such Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Working Capital Facility Indebtedness being purchased, Priority Lien Secured Parties in connection with a DIP Financing; and (ii) that such applicable Priority Lien Secured Party has the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens necessary corporate or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right other governing authority to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedsuch interests.
(e) The Working Capital Facility After such sale becomes effective, the outstanding letters of credit will remain enforceable against the issuers thereof and will remain secured by the Priority Liens upon the Collateral Agent agrees that it shall give in accordance with the Interim Notes Collateral Agent applicable provisions of the Priority Lien Documents as in effect at the time of such sale, and the Pari Passu Collateral Agent five (5) Business Days prior written notice issuers of its intention to commence the exercise letters of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send credit will remain entitled to the Working Capital Facility Collateral Agent the irrevocable notice benefit of the Interim Notes Priority Liens upon the Collateral Agent’s and sharing rights in the Pari Passu Collateral Agent’s intention proceeds thereof in accordance with the provisions of the Priority Lien Documents as in effect at the time of such sale, as fully as if the sale of the Priority Lien Obligations had not been made, but only the Person or successor agent to exercise whom the purchase option given by Priority Liens are transferred in such sale will have the Working Capital Facility Collateral Agent right to foreclose upon or otherwise enforce the Priority Liens and only the Second Lien Purchasers in the sale will have the right to direct such Person or successor as to matters relating to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full enforcement of the Working Capital Facility Indebtedness Priority Liens.
(f) Each Grantor irrevocably consents to any assignment made to one or more Second Lien Purchasers effected pursuant to this Section 3.06 (so long as provided for herein on or before the Outside Closing Date. Nothing they meet all eligibility standards contained in this Section 5.6(e) shall restrict or prohibit all relevant Priority Lien Documents, other than obtaining the Working Capital Facility Collateral Agent from taking action consent of any Grantor to an assignment to the extent required by such Priority Lien Documents) for purposes of all Priority Lien Documents and hereby agrees that the Working Capital Facility Collateral Agent, in its good faith judgment, deems no further consent from such action to Grantor shall be necessary to preserve or protect the Shared Collateralrequired.
Appears in 1 contract
Sources: Intercreditor Agreement (Vanguard Natural Resources, Inc.)
Purchase Option. (a) Upon Notwithstanding anything in this Agreement to the occurrence and during contrary, on or at any time after (i) the continuance commencement of an Event of Default Insolvency or an event of default under Liquidation Proceeding or (ii) the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf acceleration of the Interim Notes NoteholdersPriority Lien Obligations, and the Pari Passu Collateral Agent on behalf holders of the Pari Passu Lenders, after written demand by Second Lien Debt and each of their respective designated Affiliates (the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall “Second Lien Purchasers”) will have the right, at their sole option and election (but will not be obligated), at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Priority Lien Agent, to purchase from the Priority Lien Secured Parties all (but not less than all) Priority Lien Obligations (including unfunded commitments then in effect) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing that are outstanding on the date of such purchase. Promptly following the receipt of such notice, the Priority Lien Agent will deliver to the Second Lien Collateral Agent to elect to purchase a portion statement of the Working Capital Facility Indebtedness from the Working Capital Facility Lendersamount of Priority Lien Debt, ratably in proportion to the outstanding other Priority Lien Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”other than any Priority Lien Obligations constituting Excess Priority Lien Obligations) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt and DIP Financing provided by any of the information required Priority Lien Secured Parties, if any, then outstanding and the amount of the cash collateral requested by the Priority Lien Agent to be delivered pursuant to clauses Section 3.06(b)(ii) below. The right to purchase provided for in this Section 3.06 will expire unless, within 10 Business Days after the receipt by the Second Lien Collateral Agent of such notice from the Priority Lien Agent, the Second Lien Collateral Agent delivers to the Priority Lien Agent an irrevocable commitment of the Second Lien Purchasers to purchase all (a) and (bbut not less than all) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and any loans provided by any of the Working Capital Facility Indebtedness; provided, further, that Priority Lien Secured Parties in connection with a DIP Financing and to otherwise complete such revocation is in writing duly signed by purchase on the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights terms set forth under this Section 5.63.06.
(b) On the date specified by the Interim Notes Second Lien Collateral Agent or Pari Passu Collateral Agent (on behalf of the Second Lien Purchasers) in its respective Exercise Notice such irrevocable commitment (which shall not be less than five (5) Business Days nor more than 20 Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Priority Lien Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)irrevocable commitment), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, Second Lien Purchasers all (but not less than all) Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless any loans provided by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events Priority Lien Secured Parties in connection with a DIP Financing that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon are outstanding on the date of such purchase sale, subject to any required approval of any Governmental Authority then in effect, if any, and only if on the date of such sale, the Interim Notes Collateral Priority Lien Agent and/or receives the Pari Passu Collateral Agent, as applicable, shall following:
(i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenderspayment, as the purchase price thereforefor all Priority Lien Obligations sold in such sale, of an amount equal to the full amount of all Priority Lien Obligations (other than outstanding letters of credit as referred to in clause (ii) below) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and loans provided by any of the respective Purchasable Portion of all the Working Capital Facility Indebtedness Priority Lien Secured Parties in connection with a DIP Financing then outstanding and unpaid (including principal, interest, fees and expensesfees, including reasonable attorneys’ fees and legal expenses expenses, but excluding any early termination fee contingent indemnification obligations for which no claim or prepayment penalty demand for payment has been made at or premium payable pursuant prior to such time); provided that in the case of Hedge Obligations that constitute Priority Lien Active.18117613.5 Obligations, the Second Lien Purchasers shall cause the applicable agreements governing such Hedge Obligations to be assigned and novated or, if such agreements have been terminated, such purchase price shall include an amount equal to the Working Capital Facility Agreement or sum of any other Working Capital Facility Document)unpaid amounts then due in respect of such Hedge Obligations, calculated using the market quotation method and after giving effect to any netting arrangements;
(ii) furnish a cash collateral to the Working Capital Facility Collateral Agent deposit in such amounts amount as the Working Capital Facility Collateral Priority Lien Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with payment of any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit constituting Priority Lien Obligations that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent may become due and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor payable after such sale (but not in any event in an amount greater than 110% one hundred five percent (105%) of the amount then reasonably estimated by the Priority Lien Agent to be the aggregate undrawn face outstanding amount of such letters of creditcredit at such time), which cash collateral shall be (A) held by the Priority Lien Agent as security solely to reimburse the issuers of such letters of credit that become due and payable after such sale and any fees and expenses incurred in connection with such letters of credit and (B) returned to the Second Lien Collateral Agent (except as may otherwise be required by applicable law or any order of any court or other Governmental Authority) promptly after the expiration or termination from time to time of all payment contingencies affecting such letters of credit; and
(iii) agree any agreements, documents or instruments which the Priority Lien Agent may reasonably request pursuant to reimburse which the Working Capital Facility Second Lien Collateral Agent and Working Capital Facility Lenders for the Second Lien Purchasers in such sale expressly assume and adopt all of the obligations of the Priority Lien Agent and the Priority Lien Secured Parties under the Priority Lien Documents and in connection with loans provided by any checks of the Priority Lien Secured Parties in connection with a DIP Financing on and after the date of the purchase and sale and the Second Lien Collateral Agent (or any other payments provisionally credited representative appointed by the holders of a majority in aggregate principal amount of the Second Lien Debt then outstanding) becomes a successor agent thereunder.
(c) Such purchase of the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing shall be made on a pro rata basis among the Second Lien Purchasers giving notice to the Working Capital Facility Indebtedness, and/or as Priority Lien Agent of their interest to which exercise the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree purchase option hereunder according to reimburse each such Second Lien Purchaser’s portion of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, Second Lien Debt outstanding on the one hand, date of purchase or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, portion as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility ObligationsSecond Lien Purchasers may otherwise agree among themselves. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Priority Lien Agent in New York, New York, as the Working Capital Facility Collateral Priority Lien Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Second Lien Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur occurs if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account prior to 1:00 p.m. (12:00 noon, New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account later than 1:00 p.m. (12:00 noon, New York City time).
(d) Such purchase sale shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties as to the Working Capital Facility Indebtedness Priority Lien Obligations, the Collateral or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lendersany Priority Lien Secured Party, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall represent and warrantwarrant severally as to the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing then owing to it: (i) the amount that such applicable Priority Lien Secured Party owns such Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Working Capital Facility Indebtedness being purchased, Priority Lien Secured Parties in connection with a DIP Financing; and (ii) that such applicable Priority Lien Secured Party has the Working Capital Facility necessary corporate or other governing authority to assign such interests. Active.18117613.5
(e) After such sale becomes effective, the outstanding letters of credit will remain enforceable against the issuers thereof and will remain secured by the Priority Liens upon the Collateral Agent in accordance with the applicable provisions of the Priority Lien Documents as in effect at the time of such sale, and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free issuers of letters of credit will remain entitled to the benefit of the Priority Liens upon the Collateral and clear sharing rights in the proceeds thereof in accordance with the provisions of any the Priority Lien Documents as in effect at the time of such sale, as fully as if the sale of the Priority Lien Debt had not been made, but, except with respect to cash collateral held by the issuer(s) of such letters of credit, only the Person or successor agent to whom the Priority Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders are transferred in such sale will have the right to assign foreclose upon or otherwise enforce the Working Capital Facility Indebtedness Priority Liens and only the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give Second Lien Purchasers in the Interim Notes Collateral Agent and sale will have the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention right to commence the exercise of any enforcement right direct such Person or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send successor as to matters relating to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full enforcement of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralPriority Liens.
Appears in 1 contract
Purchase Option. (a) Upon Without prejudice to the occurrence and during enforcement of the continuance remedies of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty (30) daysRevolving Credit Claimholders, the Interim Notes Revolving Credit Claimholders agree that, at any time following the date on which the Required Revolving Lenders (or the Revolving Credit Agent on their behalf) have declared all or any part of the Revolving Credit Obligations to be due and payable prior to their stated maturity in accordance with the Revolving Credit Agreement, the Revolving Credit Claimholders will offer the Note Claimholders the option to purchase the aggregate amount of outstanding Revolving Credit Obligations at par (but without regard to any prepayment penalty or premium), without warranty or representation (other than that such lenders own the claims being sold, free and clear of liens or encumbrances created by them, but without regard to ultimate enforceability) or recourse. The Note Claimholders shall irrevocably accept or reject such offer within ten business days after the receipt thereof and the parties shall endeavor to close promptly (but in any event within twenty business days) following communication of any such acceptance. If the Note Claimholders accept such offer, it shall be exercised pursuant to an assignment agreement in the form attached to the Revolving Credit Agreement. If the Note Claimholders reject such offer, the Revolving Credit Claimholders shall have no further obligations pursuant to this Section and may take any further actions in their sole discretion in accordance with the Revolving Credit Documents and this Agreement. The Note Claimholders shall have no claim against any Revolving Credit Claimholder under this Section 8.17 for any action taken by any Revolving Credit Claimholder with respect to the Revolving Credit Obligations or any Collateral therefor prior to the exercise of the purchase of the Revolving Credit Obligations. As a condition to the effectuation of the purchase contemplated by this Section 8.17, the Trustee and Noteholder Collateral Agent on behalf of the Interim Notes Noteholders, Note Claimholders shall provide a full and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the complete release (other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect to purchase a portion of the Working Capital Facility Indebtedness from the Working Capital Facility Lenders, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights of any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase a breach of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit above referenced representations that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time).
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders lenders own the Working Capital Facility Indebtedness claims being sold, free and clear of any Liens liens or encumbrances and (iiicreated by them, but without regard to ultimate enforceability) of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have Revolving Credit Claimholders in such form as the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Revolving Credit Agent shall send prescribe, releasing any claims, to the Working Capital Facility Collateral Agent the irrevocable notice extent related to or arising out of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing DateRevolving Credit Obligations. Nothing contained in this Section 5.6(e) 8.17 shall restrict preclude the Revolving Credit Claimholders from selling or prohibit otherwise disposing of the Working Capital Facility Collateral Agent from taking action Revolving Credit Obligations, or any portion thereof, to the extent any third party, provided that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action third party agrees to be necessary to preserve or protect the Shared Collateralbound by this Section 8.17.
Appears in 1 contract
Sources: Intercreditor Agreement (Claymont Steel Holdings, Inc.)
Purchase Option. If (a) Upon the occurrence a Senior Loan Payment Default occurs, (b) a Senior Loan Covenant Default occurs and during the continuance of an Event of Default or an event of default under the Working Capital Facility Documents that is not cured or waived within thirty 10 days after such occurrence (30) days, the Interim Notes Collateral Agent on behalf of the Interim Notes Noteholders, and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after as evidenced by a written demand by the Trustee or the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall have the option at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral waiver from Senior Agent to elect Borrower or written confirmation of cure from Senior Agent to purchase a Borrower or Subordinated Lender Representative), (c) all or any portion of the Working Capital Facility Indebtedness from Senior Loans are accelerated pursuant to any Senior Loan Document, (d) a Subordinated Loan Default occurs and is continuing and there is not any Standstill Period or Blockage Period in effect or (e) any Credit Party becomes a debtor in any Proceeding, (each a "Purchase Event"), then the Working Capital Facility LendersSubordinated Lenders may thereafter purchase all, ratably in proportion to the outstanding Obligations of each outstanding Series of Secured Debt (in each casebut not less than all, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt of the information required to be delivered Senior Loans (the "Purchase Obligations") for the Purchase Price, pursuant to clauses (a) and (b) an assignment in accordance with the assignment provisions of the definition of “Qualified Indemnification Claim” to revoke such election to purchase such portion of the Working Capital Facility Indebtedness; providedSenior Loan Agreement, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights under this Section 5.6.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent in its respective Exercise Notice (which shall not be less than five (5) Business Days, nor more than the later of (i) thirty (30) days after whereby the receipt by Subordinated Lenders assume any remaining funding commitments and obligations of Senior Lenders under the Working Capital Facility Collateral Agent of the Exercise Notice, Senior Loan Documents and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain each Senior Lender retains all rights to be indemnified or held harmless by any Obligor indemnification provided in accordance with the terms relevant Senior Loan Documents for all claims and other amounts relating to facts and circumstances relating to such Senior Lender's holdings of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior Senior Loans (except to the closing of extent such claims and other amounts were included in the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral AgentPurchase Price), but shall not retain any rights to the security therefor, and (B) nothing contained in clause (A) above shall restrict or limit the indemnification rights regardless of any Trusteelater amendment, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent modification or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon the date of such purchase and sale, the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenders, as the purchase price therefore, the full amount of the respective Purchasable Portion of all the Working Capital Facility Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but excluding any early termination fee or prepayment penalty or premium payable pursuant to the Working Capital Facility Agreement or any other Working Capital Facility Document), (ii) furnish cash collateral to the Working Capital Facility Collateral Agent in such amounts as the Working Capital Facility Collateral Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor (but not in any event in an amount greater than 110% of the aggregate undrawn face amount of such letters of credit), (iii) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment and (iv) agree to reimburse the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have any liability for such amounts in excess of the cash proceeds of Shared Collateral received by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent, as applicable, net of (1) the reasonable costs of collection (including reasonable attorneys’ fees and legal expenses) incurred by or on behalf of the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over to the Working Capital Facility Collateral Agent or the Working Capital Facility Lenders under this Agreement, including pursuant to Section 6.6, (B) in no event shall the Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect waiver of any indemnification claims (other than provisions under the Qualified Indemnification Claims), (C) Senior Loan Documents or termination of any of the Senior Loan Documents. Notwithstanding anything in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any such liability for any such losses, costs, damages or expenses Senior Loan Documents to the extent caused by or resulting from the gross negligence or willful misconduct contrary, no consent of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds Credit Party to such bank account of the Working Capital Facility Collateral Agent in New York, New York, as the Working Capital Facility Collateral Agent may designate in writing to the Interim Notes Collateral Agent and Pari Passu Collateral Agent for such purpose not less than three (3) Business Days prior to the date on which such amounts are to purchase will be so remitted. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account prior to 1:00 p.m. (New York City time) and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, to the bank account designated by the Working Capital Facility Collateral Agent are received in such bank account later than 1:00 p.m. (New York City time)required.
(d) Such purchase shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders as to the Working Capital Facility Indebtedness or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lenders, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall represent and warrant: (i) the amount of the Working Capital Facility Indebtedness being purchased, (ii) that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right to assign the Working Capital Facility Indebtedness and the assignment is duly authorized.
(e) The Working Capital Facility Collateral Agent agrees that it shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent five (5) Business Days prior written notice of its intention to commence the exercise of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send to the Working Capital Facility Collateral Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the Pari Passu Collateral Agent’s intention to exercise the purchase option given by the Working Capital Facility Collateral Agent to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared Collateral.
Appears in 1 contract
Sources: Subordination Agreement (STRATA Skin Sciences, Inc.)
Purchase Option. (a) Upon Notwithstanding anything in this Agreement to the occurrence and during contrary, after (i) the continuance commencement of an Event of Default Insolvency or an event of default under Liquidation Proceeding or (ii) the Working Capital Facility Documents that is not cured or waived within thirty (30) days, the Interim Notes Collateral Agent on behalf acceleration of the Interim Notes NoteholdersPriority Lien Obligations, and the Pari Passu Collateral Agent on behalf each of the Pari Passu Lenders, after written demand by holders of the Trustee or Second Lien Debt and each of their respective designated Affiliates (the Interim Notes Collateral Agent, on the one hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company for the accelerated payment of all Interim Notes Obligations or Pari Passu Obligations, as applicable, shall “Second Lien Purchasers”) will have the right, at their sole option and election (but will not be obligated), at any time upon five (5) Business Days’ prior written notice to the Working Capital Facility Collateral Agent to elect Priority Lien Agent, to purchase a portion from the Priority Lien Secured Parties all (but not less than all) (A) Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (B) if applicable, Obligations (including principal, unpaid interest, fees, reasonable attorneys’ fees and legal expenses, but excluding contingent indemnification and reimbursement obligations for which no claim or demand for payment has been made at or prior to such time) provided by any of the Working Capital Facility Indebtedness from Priority Lien Secured Parties in connection with a DIP Financing that are outstanding on the Working Capital Facility Lendersdate of such purchase. Promptly following the receipt of such notice, ratably in proportion the Priority Lien Agent will deliver to the outstanding Obligations of each outstanding Series of Secured Debt (in each case, the “Purchasable Portion”). Such notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, to the Working Capital Facility Collateral Agent shall be irrevocable; provided, that the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall have the right within ten (10) days following receipt Second Lien Trustee a statement of the information required amount of Priority Lien Debt, other Priority Lien Obligations (other than any Priority Lien Obligations constituting Excess Priority Lien Obligations) and DIP Financing (including unpaid interest, fees and expenses and other obligations in respect of such DIP Financing, but excluding contingent indemnification and reimbursement obligations for which no claim or demand for payment has been made at or prior to such time) provided by any of the Priority Lien Secured Parties, if any, then outstanding and the amount of the cash collateral requested by the Priority Lien Agent to be delivered pursuant to clauses Section 3.06(b)(ii) below. The right to purchase provided for in this Section 3.06 will expire unless, within 10 Business Days after the receipt by the Second Lien Trustee of such notice from the Priority Lien Agent, the Second Lien Trustee delivers to the Priority Lien Agent an irrevocable commitment of the Second Lien Purchasers to purchase all (abut not less than all) of (A) the Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (bB) if applicable, Obligations (including principal, unpaid interest, fees, reasonable attorneys’ fees and legal expenses, but excluding contingent indemnification and reimbursement obligations for which no claim or demand for payment has been made at or prior to such time) provided by any of the definition of “Qualified Indemnification Claim” Priority Lien Secured Parties in connection with a DIP Financing and to revoke otherwise complete such election to purchase such portion of on the Working Capital Facility Indebtedness; provided, further, that such revocation is in writing duly signed by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received by the Working Capital Facility Collateral Agent prior to the expiration of such ten-day period. Neither the Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have any rights terms set forth under this Section 5.63.06.
(b) On the date specified by the Interim Notes Collateral Agent or Pari Passu Collateral Agent Second Lien Trustee (on behalf of the Second Lien Purchasers) in its respective Exercise Notice such irrevocable commitment (which shall not be less than five (5) Business Days nor more than 20 Business Days, nor more than the later of (i) thirty (30) days after the receipt by the Working Capital Facility Collateral Priority Lien Agent of the Exercise Notice, and (ii) ten (10) days after receipt by the Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, of the information required to be delivered pursuant to clauses (a) and (b) of the definition of “Qualified Indemnification Claim” (the later of such dates, the “Outside Closing Date”)irrevocable commitment), the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties shall sell to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the Working Capital Facility Collateral Agent and Working Capital Facility Lenders, the respective Purchasable Portion; provided, that Second Lien Purchasers all (but not less than all) (A) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders shall retain all rights to be indemnified or held harmless by Priority Lien Obligations (including unfunded commitments) other than any Obligor in accordance with the terms of the Working Capital Facility Documents as to actions or events that occurred or did not occur prior to the closing of the of the sale of the Working Capital Facility Indebtedness to the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain any rights to the security therefor, Priority Lien Obligations constituting Excess Priority Lien Obligations and (B) nothing contained any Obligations (including unpaid interest, fees and expenses and other obligations in clause (Arespect of such DIP Financing, but excluding contingent indemnification and reimbursement obligations for which no claim or demand for payment has been made at or prior to such time) above shall restrict or limit the indemnification rights of provided by any Trustee, the Interim Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital Facility Documents assumed as a result of the purchase of the Working Capital Facility Indebtedness. The Working Capital Facility Collateral Agent hereby represents and warrants that, as of the date it becomes Priority Lien Secured Parties in connection with a party to this Agreement, no approval of any court or other regulatory or governmental authority is required for such sale.
(c) Upon DIP Financing that are outstanding on the date of such purchase sale, subject to any required approval of any Governmental Authority then in effect, if any, and only if on the date of such sale, the Interim Notes Collateral Priority Lien Agent and/or receives the Pari Passu Collateral Agent, as applicable, shall following:
(i) pay to the Working Capital Facility Collateral Agent, for the benefit of Working Capital Facility Lenderspayment in cash, as the purchase price thereforefor all Priority Lien Obligations sold in such sale, of an amount equal to the full par value amount of the respective Purchasable Portion all (A) Priority Lien Obligations (other than outstanding letters of credit as referred to in clause (ii) below) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (B) if applicable, all the Working Capital Facility Indebtedness then outstanding and unpaid Obligations (including principal, unpaid interest, fees and expensesfees, including reasonable attorneys’ fees and legal expenses expenses, but excluding contingent indemnification and reimbursement obligations for which no claim or demand for payment has been made at or prior to such time) provided by any early of the Priority Lien Secured Parties in connection with a DIP Financing then outstanding; provided that in the case of Hedging Obligations that constitute Priority Lien Obligations the Second Lien Purchasers shall cause the applicable agreements governing such Hedging Obligations to be assigned and novated or, if such agreements have been terminated, such purchase price shall include an amount equal to the sum of any termination fee or prepayment penalty or premium payable payments (including unpaid amounts) then due in respect of such Hedging Obligations, calculated pursuant to the Working Capital Facility Agreement or terms of the applicable Swap Contract and after giving effect to any other Working Capital Facility Document), netting arrangements;
(ii) furnish a cash collateral to the Working Capital Facility Collateral Agent deposit in such amounts amount as the Working Capital Facility Collateral Priority Lien Agent determines is reasonably necessary to secure the Working Capital Facility Collateral Agent and Working Capital Facility Lenders in connection with payment of any issued and outstanding letters of credit provided by the Working Capital Facility Collateral Agent or Working Capital Facility Lenders (or letters of credit constituting Priority Lien Obligations that the Working Capital Facility Collateral Agent has arranged to be provided by third parties pursuant to the financing arrangements under the Working Capital Facility Documents of the Working Capital Facility Collateral Agent may become due and Working Capital Facility Lenders with the Company or any Obligor) to the Company or any Obligor payable after such sale (but not in any event in an amount greater than 110% one hundred and two percent (102%) of the amount then reasonably estimated by the Priority Lien Agent to be the aggregate undrawn face outstanding amount of such letters of creditcredit at such time), which cash collateral shall be (A) held by the Priority Lien Agent as security solely to reimburse the issuers of such letters of credit that become due and payable after such sale and any fees and expenses incurred in connection with such letters of credit and (B) returned to the Second Lien Trustee (except as may otherwise be required by applicable law or any order of any court or other Governmental Authority) promptly after the expiration or termination from time to time of all payment contingencies affecting such letters of credit; and
(iii) agree to reimburse any agreements, documents or instruments that the Working Capital Facility Collateral Priority Lien Agent and Working Capital Facility Lenders for any checks or other payments provisionally credited to the Working Capital Facility Indebtedness, and/or as may reasonably request pursuant to which the Working Capital Facility Collateral Agent or Working Capital Facility Lenders has not yet received final payment Second Lien Trustee and (iv) agree to reimburse the Working Capital Facility Collateral Second Lien Purchasers in such sale expressly assume and adopt all of the obligations of the Priority Lien Agent and Working Capital Facility Lenders the Priority Lien Secured Parties under the Priority Lien Documents and in respect of Qualified Indemnification Claims which in fact result in any loss, cost, damage or expense connection with the Obligations (including principal, unpaid interest, fees, reasonable attorneys’ fees and legal expenses, but excluding contingent indemnification and reimbursement obligations for which no claim or demand for payment has been made at or prior to such time) to the Working Capital Facility Collateral Agent and Working Capital Facility Lenders; provided, that (A) in no event will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other other hand, have provided by any liability for such amounts in excess of the cash proceeds Priority Lien Secured Parties in connection with a DIP Financing on and after the date of Shared Collateral received the purchase and sale and the Second Lien Trustee (or any other representative appointed by the Interim holders of a majority in aggregate principal amount of the Second Lien Indenture Notes Collateral Agent or then outstanding) becomes a successor agent thereunder.
(c) Such purchase of the Pari Passu Collateral AgentPriority Lien Obligations (including unfunded commitments) and, as if applicable, net of (1) the reasonable costs of collection Obligations (including principal, unpaid interest, fees, reasonable attorneys’ fees and legal expenses, but excluding contingent indemnification and reimbursement obligations for which no claim or demand for payment has been made at or prior to such time) incurred provided by or on behalf any of the Working Capital Facility Collateral Agent or Priority Lien Secured Parties in connection with a DIP Financing shall be made on a pro rata basis among the Working Capital Facility Lenders in respect of such Shared Collateral and (2) any amounts that are required to be turned over Second Lien Purchasers giving notice to the Working Capital Facility Collateral Priority Lien Agent or of their interest to exercise the Working Capital Facility Lenders under this Agreement, including pursuant purchase option hereunder according to Section 6.6, (B) in no event shall each such Second Lien Purchaser’s portion of the Interim Notes Collateral Agent or any Interim Notes Noteholder, Second Lien Debt outstanding on the one hand, date of purchase or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other hand, have any such liability for or in respect of any indemnification claims (other than the Qualified Indemnification Claims), (C) in no event shall the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any portion as such liability for any such losses, costs, damages or expenses to the extent caused by or resulting from the gross negligence or willful misconduct of the Working Capital Facility Collateral Agent, as determined by a final non-appealable order of a court of competent jurisdiction, and (D) any amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent pursuant to this clause (c)(iv) shall constitute Working Capital Facility ObligationsSecond Lien Purchasers may otherwise agree among themselves. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Working Capital Facility Collateral Priority Lien Agent in New York, New York, as the Working Capital Facility Collateral Priority Lien Agent may designate in writing to the Interim Notes Second Lien Collateral Agent and Pari Passu Collateral Agent Trustee for such purpose not less than three (3) Business Days prior to the date on which such amounts are to be so remittedpurpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur occurs if the amounts so paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account prior to 1:00 p.m. (12:00 noon, New York City time) , and interest shall be calculated to and including such Business Day if the amounts so paid by the Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as applicable, Second Lien Purchasers to the bank account designated by the Working Capital Facility Collateral Priority Lien Agent are received in such bank account later than 1:00 p.m. (12:00 noon, New York City time).
(d) Such purchase sale shall be expressly made without representation or warranty of any kind by the Working Capital Facility Collateral Agent and Working Capital Facility Lenders Priority Lien Secured Parties as to the Working Capital Facility Indebtedness Priority Lien Obligations, the Collateral or otherwise and without recourse to the Working Capital Facility Collateral Agent or Working Capital Facility Lendersany Priority Lien Secured Party, except that the Working Capital Facility Collateral Agent and Working Capital Facility Lenders applicable Priority Lien Secured Party shall represent and warrantwarrant severally as to the Priority Lien Obligations (including unfunded commitments) and, if applicable, the Obligations provided by any of the Priority Lien Secured Parties in connection with a DIP Financing then owing to it: (i) the amount that such applicable Priority Lien Secured Party owns such Priority Lien Obligations (including unfunded commitments) and any Obligations provided by any of the Working Capital Facility Indebtedness being purchased, Priority Lien Secured Parties in connection with a DIP Financing; and (ii) that such applicable Priority Lien Secured Party has the Working Capital Facility Collateral Agent and Working Capital Facility Lenders own the Working Capital Facility Indebtedness free and clear of any Liens necessary corporate or encumbrances and (iii) the Working Capital Facility Collateral Agent and Working Capital Facility Lenders have the right other governing authority to assign the Working Capital Facility Indebtedness and the assignment is duly authorizedsuch interests.
(e) The Working Capital Facility After such sale becomes effective, the outstanding letters of credit will remain enforceable against the issuers thereof and will remain secured by the Priority Liens upon the Collateral Agent agrees that it shall give in accordance with the Interim Notes Collateral Agent applicable provisions of the Priority Lien Documents as in effect at the time of such sale, and the Pari Passu Collateral Agent five (5) Business Days prior written notice issuers of its intention to commence the exercise letters of any enforcement right or remedy against the Shared Collateral. In the event that during such five Business Day period, the Interim Notes Collateral Agent and the Pari Passu Collateral Agent shall send credit will remain entitled to the Working Capital Facility Collateral Agent the irrevocable notice benefit of the Interim Notes Priority Liens upon the Collateral Agent’s and sharing rights in the Pari Passu Collateral Agent’s intention proceeds thereof in accordance with the provisions of the Priority Lien Documents as in effect at the time of such sale, as fully as if the sale of the Priority Lien Debt had not been made, but only the Person or successor agent to exercise whom the purchase option given by Priority Liens are transferred in such sale will have the Working Capital Facility Collateral Agent right to foreclose upon or otherwise enforce the Priority Liens and only the Second Lien Purchasers in the sale will have the right to direct such Person or successor as to matters relating to the Interim Notes Collateral Agent and Pari Passu Collateral Agent under this Section 5.6, the Working Capital Facility Collateral Agent shall not commence any foreclosure or other action to sell or otherwise realize upon the Shared Collateral or immediately desist from taking any further action; provided, that the purchase and sale with respect to the Working Capital Facility Indebtedness provided for herein shall have closed by the Outside Closing Date and the Working Capital Facility Collateral Agent shall have received payment in full enforcement of the Working Capital Facility Indebtedness as provided for herein on or before the Outside Closing Date. Nothing contained in this Section 5.6(e) shall restrict or prohibit the Working Capital Facility Collateral Agent from taking action to the extent that the Working Capital Facility Collateral Agent, in its good faith judgment, deems such action to be necessary to preserve or protect the Shared CollateralPriority Liens.
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