Common use of Buy-Out Option Clause in Contracts

Buy-Out Option. Each Last Out Note Holder hereby agrees that: (a) at any time on or after the date that the Agent shall have voted in favor of any waiver, amendment, consent, request or election relating to this Agreement or any other Transaction Document that requires the affirmative vote of each of the Last Out Note Holders under Section 13.6 of this Agreement, which affirmative vote of each of the Last Out Note Holders shall not have been received (the “Holdout Buy-Out”) (the Last Out Note Holders (who failed to provide such vote) whose interest in the Fourth Tranche US Last Out Term Notes that the First Out Note Holders elect to purchase in connection with the Holdout Buy-Out, each a “Holdout Last Out Note Holder” and collectively, the “Holdout Last Out Note Holders”), then any of the First Out Note Holders (each, a “Committed First Out Note Holder” and collectively, the “Committed First Out Note Holders”) shall have the right by giving a written notice (a “First Out Committed Buy-Out Notice”; it being understood that the First Out Note Holders shall have no obligation to send a First Out Committed Buy-Out Notice) to the Last Out Note Holders to acquire (ratably in proportion to their respective pro rata shares of the First Out Notes or as shall otherwise be determined by the Agent) on or before the date that is 10 Business Days after the date of the Last Out Note Holders’ receipt of such First Out Committed Buy-Out Notice, from the Last Out Note Holders of the right, title, and interest of the Last Out Note Holders (or, with respect to the Holdout Buy-Out, of the Holdout Last Out Note Holders only) in and to the Fourth Tranche US Last Out Term Notes; provided, however, that if any First Out Note Holder elects not to participate in the buy-out contemplated by this Section 13.21, any other First Out Note Holder (or such other Person(s) designated by the Agent) may purchase the ratable portion of the Fourth Tranche US Last Out Term Notes that such declining First Out Note Holder otherwise would have been entitled to purchase. (b) Upon the receipt by the Last Out Note Holders of the First Out Committed Buy-Out Notice, the Committed First Out Note Holders that have elected to participate in the buy-out contemplated in this Section 13.21 shall irrevocably be committed to acquire from the Last Out Note Holders (or, with respect to the Holdout Buy-Out, from the Holdout Last Out Note Holders only) on the date specified by the First Out Note Holders in the First Out Committed Buy-Out Notice (which date shall be within 10 Business Days after receipt by the Last Out Note Holders of the First Out Committed Buy-Out Notice) all (but not less than all) of the right, title, and interest of the Last Out Note Holders (or, with respect to the Holdout Buy-Out, from the Holdout Last Out Note Holders only) in and to the Fourth Tranche US Last Out Notes by paying to the Last Out Note Holders (or, with respect to the Holdout Buy-Out, the applicable Holdout Last Out Note Holder only), in cash a purchase price (the “First Out Purchase Price”) equal to the sum of: (i) 100% of the outstanding balance with respect to the Fourth Tranche US Last Out Term Notes (or, with respect to the Holdout Buy-Out, 100% of the Holdout Last Out Note Holders’ pro rata share of the outstanding balance with respect to Fourth Tranche US Last Out Term Notes), including, without limitation, principal, interest accrued and unpaid thereon, and any unpaid fees, to the extent earned or due and payable in accordance with the Transaction Documents, and [****] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (ii) all expenses to the extent owing to the Last Out Note Holders (or, with respect to the Holdout Buy-Out, to the Holdout Last Out Note Holders only) in accordance with the Transaction Documents; whereupon the Last Out Note Holders (or, with respect to the Holdout Buy-Out, the Holdout Last Out Note Holders) shall assign to the Committed First Out Note Holders who have elected to participate in the buy-out contemplated by this Section 13.21, without any representation, recourse, or warranty whatsoever (except that each Last Out Note Holder (or, with respect to the Holdout Buy-Out, each Holdout Last Out Note Holder) shall warrant to the Committed First Out Note Holders that (A) the amount quoted by such Last Out Note Holder or such Holdout Last Out Note Holder (as the case may be) as its portion of the First Out Purchase Price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (B) it owns, or has the right to transfer to the Committed First Out Note Holders, the rights being transferred, (C) the assets being transferred will be free and clear of Liens, and (D) no approval of any Governmental Authority is required for the sale or transfer of the Fourth Tranche US Last Out Term Notes), its right, title, and interest with respect to the Fourth Tranche US Last Out Term Notes. (c) The assignment by the Last Out Note Holders (or, with respect to the Holdout Buy-Out, the Holdout Last Out Note Holders) of their right, title, and interest with respect to the Fourth Tranche US Last Out Term Notes shall be at no expense to the First Out Note Holders. In connection with such assignment, the applicable Last Out Note Holders (or, with respect to the Holdout Buy-Out, the Holdout Last Out Note Holders) shall deliver to the First Out Note Holders their original Fourth Tranche US Last Out Term Notes and shall execute such other customary documents, instruments, and agreements reasonably necessary to effect such assignment, whereupon the Last Out Note Holders (or, with respect to the Holdout Buy-Out, the Holdout Last Out Note Holders) shall be relieved from any further duties, obligations, or liabilities to the First Out Note Holders pursuant to this Agreement. (d) Anything in this Agreement to the contrary notwithstanding, each First Out Note Holder and each Last Out Note Holder hereby agree that the Committed First Out Note Holders may (i) subject to the terms of this Agreement, assign and delegate to any assignee any of the rights and obligations acquired by the First Out Note Holders as a result of the exercise of their rights pursuant to this Section 13.21 and (ii) offer the right to each other First Out Note Holder to participate in such purchase by the First Out Note Holders pursuant to this Section 13.21 in proportion to their respective pro rata shares of the First Out Notes.

Buy-Out Option. Each Last Out Note Holder hereby agrees that: (a) at any time on or after the date that the Agent shall have voted in favor of any waiver, amendment, consent, request or election relating to this Agreement or any other Transaction Document that requires the affirmative vote of each of the Last Out Note Holders under Section 13.6 of this Agreement, which affirmative vote of each of the Last Out Note Holders shall not have been received (the “Holdout Buy-Out”) (the Last Out Note Holders (who failed to provide such vote) whose interest in the Fourth Tranche US Last Out Term Notes that the First Out Note Holders elect to purchase in connection with the Holdout Buy-Out, each a “Holdout Last Out Note Holder” and collectively, the “Holdout Last Out Note Holders”), then any of the First Out Note Holders (each, a “Committed First Out Note Holder” and collectively, the “Committed First Out Note Holders”) shall have the right by giving a written notice (a “First Out Committed Buy-Out Notice”; it being understood that the First Out Note Holders shall have no obligation to send a First Out Committed Buy-Out Notice) to the Last Out Note Holders to acquire (ratably in proportion to their respective pro rata shares of the First Out Notes or as shall otherwise be determined by the Agent) on or before the date that is 10 Business Days after the date of the Last Out Note Holders’ receipt of such First Out Committed Buy-Out Notice, from the Last Out Note Holders of the right, title, and interest of the Last Out Note Holders (or, with respect to the Holdout Buy-Out, of the Holdout Last Out Note Holders only) in and to the Fourth Tranche US Last Out Term Notes; provided, however, that if any First Out Note Holder elects not to participate in the buy-out contemplated by this Section 13.21, any other First Out Note Holder (or such other Person(s) designated by the Agent) may purchase the ratable portion of the Fourth Tranche US Last Out Term Notes that such declining First Out Note Holder otherwise would have been entitled to purchase. (b) Upon the receipt by the Last Out Note Holders of the First Out Committed Buy-Out Notice, the Committed First Out Note Holders that have elected to participate in the buy-out contemplated in this Section 13.21 shall irrevocably be committed to acquire from the [****] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED. Last Out Note Holders (or, with respect to the Holdout Buy-Out, from the Holdout Last Out Note Holders only) on the date specified by the First Out Note Holders in the First Out Committed Buy-Out Notice (which date shall be within 10 Business Days after receipt by the Last Out Note Holders of the First Out Committed Buy-Out Notice) all (but not less than all) of the right, title, and interest of the Last Out Note Holders (or, with respect to the Holdout Buy-Out, from the Holdout Last Out Note Holders only) in and to the Fourth Tranche US Last Out Term Notes by paying to the Last Out Note Holders (or, with respect to the Holdout Buy-Out, the applicable Holdout Last Out Note Holder only), in cash a purchase price (the “First Out Purchase Price”) equal to the sum of: (i) 100% of the outstanding balance with respect to the Fourth Tranche US Last Out Term Notes (or, with respect to the Holdout Buy-Out, 100% of the Holdout Last Out Note Holders’ pro rata share of the outstanding balance with respect to Fourth Tranche the US Last Out Term Notes), including, without limitation, principal, interest accrued and unpaid thereon, and any unpaid fees, to the extent earned or due and payable in accordance with the Transaction Documents, and [****] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDEDand (ii) all expenses to the extent owing to the Last Out Note Holders (or, with respect to the Holdout Buy-Out, to the Holdout Last Out Note Holders only) in accordance with the Transaction Documents; whereupon the Last Out Note Holders (or, with respect to the Holdout Buy-Out, the Holdout Last Out Note Holders) shall assign to the Committed First Out Note Holders who have elected to participate in the buy-out contemplated by this Section 13.21, without any representation, recourse, or warranty whatsoever (except that each Last Out Note Holder (or, with respect to the Holdout Buy-Out, each Holdout Last Out Note Holder) shall warrant to the Committed First Out Note Holders that (A) the amount quoted by such Last Out Note Holder or such Holdout Last Out Note Holder (as the case may be) as its portion of the First Out Purchase Price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (B) it owns, or has the right to transfer to the Committed First Out Note Holders, the rights being transferred, (C) the assets being transferred will be free and clear of Liens, and (D) no approval of any Governmental Authority is required for the sale or transfer of the Fourth Tranche US Last Out Term Notes), its right, title, and interest with respect to the Fourth Tranche US Last Out Term Notes. (c) The assignment by the Last Out Note Holders (or, with respect to the Holdout Buy-Out, the Holdout Last Out Note Holders) of their right, title, and interest with respect to the Fourth Tranche US Last Out Term Notes shall be at no expense to the First Out Note Holders. In connection with such assignment, the applicable Last Out Note Holders (or, with respect to the Holdout Buy-Out, the Holdout Last Out Note Holders) shall deliver to the First Out Note Holders their original Fourth Tranche US Last Out Term Notes and shall execute such other customary documents, instruments, and agreements reasonably necessary to effect such assignment, whereupon the Last Out Note Holders (or, with respect to the Holdout Buy-Out, the Holdout Last Out Note Holders) shall be relieved from any further duties, obligations, or liabilities to the First Out Note Holders pursuant to this Agreement. (d) Anything in this Agreement to the contrary notwithstanding, each First Out Note Holder and each Last Out Note Holder hereby agree that the Committed First Out Note [****] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED. Holders may (i) subject to the terms of this Agreement, assign and delegate to any assignee any of the rights and obligations acquired by the First Out Note Holders as a result of the exercise of their rights pursuant to this Section 13.21 and (ii) offer the right to each other First Out Note Holder to participate in such purchase by the First Out Note Holders pursuant to this Section 13.21 in proportion to their respective pro rata shares of the First Out Notes. [****] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.

Buy-Out Option. Each Last Out Note Holder hereby agrees that: (a) at any time on or after the date that the Agent shall have voted in favor of any waiver, amendment, consent, request or election relating to this Agreement or any other Transaction Document that requires the affirmative vote of each of the Last Out Note Holders under Section 13.6 of this Agreement, which affirmative vote of each of the Last Out Note Holders shall not have been received (the “Holdout Buy-Out”) (the Last Out Note Holders (who failed to provide such vote) whose interest in the Fourth Tranche US Last Out Term Notes that the First Out Note Holders elect to purchase in connection with the Holdout Buy-Out, each a “Holdout Last Out Note Holder” and collectively, the “Holdout Last Out Note Holders”), then any of the First Out Note Holders (each, a “Committed First Out Note Holder” and collectively, the “Committed First Out Note Holders”) shall have the right by giving a written notice (a “First Out Committed Buy-Out Notice”; it being understood that the First Out Note Holders shall have no obligation to send a First Out Committed Buy-Out Notice) to the Last Out Note Holders to acquire (ratably in proportion to their respective pro rata shares of the First Out Notes or as shall otherwise be determined by the Agent) on or before the date that is 10 Business Days after the date of the Last Out Note Holders’ receipt of such First Out Committed Buy-Out Notice, from the Last Out Note Holders of the right, title, and interest of the Last Out Note Holders (or, with respect to the Holdout Buy-Out, of the Holdout Last Out Note Holders only) in and to the Fourth Tranche US Last Out Term Notes; provided, however, that if any First Out Note Holder elects not to participate in the buy-out contemplated by this Section 13.21, any other First Out Note Holder (or such other Person(s) designated by the Agent) may purchase the ratable portion of the Fourth Tranche US Last Out Term Notes that such declining First Out Note Holder otherwise would have been entitled to purchase. (b) Upon the receipt by the Last Out Note Holders of the First Out Committed Buy-Out Notice, the Committed First Out Note Holders that have elected to participate in the buy-out contemplated in this Section 13.21 shall irrevocably be committed to acquire from the Last Out Note Holders (or, with respect to the Holdout Buy-Out, from the Holdout Last Out Note Holders only) on the date specified by the First Out Note Holders in the First Out Committed Buy-Out Notice (which date shall be within 10 Business Days after receipt by the Last Out Note Holders of the First Out Committed Buy-Out Notice) all (but not less than all) of the right, title, and interest of the Last Out Note Holders (or, with respect to the Holdout Buy-Out, from the Holdout Last Out Note Holders only) in and to the Fourth Tranche US Last Out Notes by paying to the Last Out Note Holders (or, with respect to the Holdout Buy-Out, the applicable Holdout Last Out Note Holder only), in cash a purchase price (the “First Out Purchase Price”) equal to the sum of:: [****] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (i) 100% of the outstanding balance with respect to the Fourth Tranche US Last Out Term Notes (or, with respect to the Holdout Buy-Out, 100% of the Holdout Last Out Note Holders’ pro rata share of the outstanding balance with respect to Fourth Tranche US Last Out Term Notes), including, without limitation, principal, interest accrued and unpaid thereon, and any unpaid fees, to the extent earned or due and payable in accordance with the Transaction Documents, and [****] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDEDand (ii) all expenses to the extent owing to the Last Out Note Holders (or, with respect to the Holdout Buy-Out, to the Holdout Last Out Note Holders only) in accordance with the Transaction Documents; whereupon the Last Out Note Holders (or, with respect to the Holdout Buy-Out, the Holdout Last Out Note Holders) shall assign to the Committed First Out Note Holders who have elected to participate in the buy-out contemplated by this Section 13.21, without any representation, recourse, or warranty whatsoever (except that each Last Out Note Holder (or, with respect to the Holdout Buy-Out, each Holdout Last Out Note Holder) shall warrant to the Committed First Out Note Holders that (A) the amount quoted by such Last Out Note Holder or such Holdout Last Out Note Holder (as the case may be) as its portion of the First Out Purchase Price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (B) it owns, or has the right to transfer to the Committed First Out Note Holders, the rights being transferred, (C) the assets being transferred will be free and clear of Liens, and (D) no approval of any Governmental Authority is required for the sale or transfer of the Fourth Tranche US Last Out Term Notes), its right, title, and interest with respect to the Fourth Tranche US Last Out Term Notes. (c) The assignment by the Last Out Note Holders (or, with respect to the Holdout Buy-Out, the Holdout Last Out Note Holders) of their right, title, and interest with respect to the Fourth Tranche US Last Out Term Notes shall be at no expense to the First Out Note Holders. In connection with such assignment, the applicable Last Out Note Holders (or, with respect to the Holdout Buy-Out, the Holdout Last Out Note Holders) shall deliver to the First Out Note Holders their original Fourth Tranche US Last Out Term Notes and shall execute such other customary documents, instruments, and agreements reasonably necessary to effect such assignment, whereupon the Last Out Note Holders (or, with respect to the Holdout Buy-Buy- Out, the Holdout Last Out Note Holders) shall be relieved from any further duties, obligations, or liabilities to the First Out Note Holders pursuant to this Agreement. (d) Anything in this Agreement to the contrary notwithstanding, each First Out Note Holder and each Last Out Note Holder hereby agree that the Committed First Out Note Holders may (i) subject to the terms of this Agreement, assign and delegate to any assignee any of the rights and obligations acquired by the First Out Note Holders as a result of the exercise of their rights pursuant to this Section 13.21 and (ii) offer the right to each other First Out Note Holder to participate in such purchase by the First Out Note Holders pursuant to this Section 13.21 in proportion to their respective pro rata shares of the First Out Notes.