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Common use of Buy Out Right Clause in Contracts

Buy Out Right. (a) Subject to the terms of this Section 8.3, the Second Priority Representative, on behalf of the Second Priority Creditors, shall have the right at any time, but not the obligation, to deliver a notice to the First Priority Representative (a “Buy Out Notice”) to acquire all right, title and interest of the First Priority Creditors in and to First Priority Obligations. Without limiting the foregoing, First Priority Representative shall give the Second Priority Representative, on behalf of the Second Priority Creditors written notice with regard to the earliest of the following: (i) within five (5) Business Days of its becoming aware that the First Priority Obligations Payment Date will occur on a date other than April 13, 2013, (ii) five (5) Business Days prior to the First Priority Representative’s acceleration of the First Priority Obligations or any material portion thereof, provided, that if the First Priority Representative determines in good faith that the interests of the First Priority Secured Parties are at risk of being prejudiced if it does not effect such acceleration prior to the expiration of such five (5) Business Day period, it may effect such acceleration and shall send notice of such acceleration to the Second Priority Representative no later than contemporaneously with such acceleration, and (iii) five (5) Business Days prior to the First Priority Representative’s initiating proceedings to foreclose upon all or a material portion of the First Priority Collateral. The Second Priority Representative, on behalf of the Second Priority Creditors, shall have the right at any time (whether or not any notice described in the preceding sentence has been delivered or the time for such delivery has elapsed) to deliver a Buy Out Notice as provided for above in this Section 8.3(a). The First Priority Representative shall agree to forbear from accelerating the maturity of the First Priority Obligations or from exercising any Enforcement Action to realize upon any Lien of the First Priority Collateral if the First Priority Representative receives, on or before the fifth day following the date the acceleration notice is given, a Buy-Out Notice from the Second Priority Representative, on behalf of the Second Priority Creditors. (b) Upon receipt of a Buy Out Notice, the First Priority Representative shall promptly give notice to the Second Priority Representative (a “Payoff Letter”) of (i) the aggregate amount of First Priority Obligations outstanding and the per diem accrual rate with regard thereto, (ii) the details of the outstanding Swap Agreements and Cash Management Obligations and (iii) notice of any asserted claims of third parties against the First Priority Representative and the First Priority Creditors incurred in connection with the First Priority Documents. (c) No later than ten (10) Business Days after delivery of the Buy-Out Notice, the Second Priority Representative, on behalf of the Second Priority Creditors, shall (i) pay to the First Priority Representative an amount equal to the total First Priority Obligations (including those relating to accrued but unpaid interest, those relating to all Swap Agreements then due and outstanding and all Cash Management Obligations then due and outstanding) owing to each First Priority Creditor excluding the Unasserted Contingent Claims, (ii) take reasonable steps to ensure that all Swap Agreements are terminated or cash collateralized or back-stopped in a manner reasonably satisfactory to the First Priority Representative, (iii) take reasonable steps to ensure that all Cash Management Obligations are terminated or collateralized to the reasonable satisfaction of the obligee and (iv) provide assurances reasonably acceptable to the First Priority Representative that any claims of the First Priority Secured Parties against the Common Collateral for indemnification for claims listed in the Payoff Letter as contemplated by Section 8.3(b)(iii) and/or for Overadvances shall continue to be secured by the Common Collateral in the same priority as they were secured prior to the buyout. (d) Such purchase shall be expressly made without any representation or warranty of any kind by the First Priority Representative or the First Priority Lenders as to the First Priority Obligations so purchased or otherwise and without recourse to the First Priority Representative or any First Priority Lender, except that each First Priority Lender shall represent and warrant (i) the amount of the First Priority Obligations being purchased from it, (ii) that such First Priority Lender owns its portion of the First Priority Obligations so purchased free and clear of any Liens or encumbrances and (iii) such First Priority Lender has the right to assign such First Priority Obligations and the assignment is duly authorized by such First Priority Lender. (e) In addition, if the First Priority Representative has given notice in the Payoff Letter delivered pursuant to Section 8.3(b) that the First Priority Representative elects to be replaced as the First Priority Representative, it shall be entitled to resign at the closing of such purchase and shall be replaced by a designee of the Second Priority Required Lenders, but shall continue to be entitled to all the indemnification provided to resigning First Priority Representative pursuant to the Existing First Priority Agreement.

Appears in 1 contract

Samples: Intercreditor Agreement (RHI Entertainment, Inc.)

Buy Out Right. (a) Subject to the terms of this Section 8.3, the Second Priority Representative, on behalf of the Second Priority Creditors, shall have the right at any time, but not the obligation, to deliver a notice to the First Priority Representative (a “Buy Out Notice”) to acquire all right, title and interest of the First Priority Creditors in and to First Priority Obligations. Without limiting the foregoing, First Priority Representative shall give the Second Priority Representative, on behalf of the Second Priority Creditors written notice with regard to the earliest of the following: (i) within five (5) Business Days of its becoming aware that the First Priority Obligations Payment Date will occur on a date other than April 13, 2013the sixth anniversary of the Closing Date, (ii) five (5) Business Days prior to the First Priority Representative’s acceleration of the First Priority Obligations or any material portion thereof, provided, that if the First Priority Representative determines in good faith that the interests of the First Priority Secured Parties are at risk of being prejudiced if it does not effect such acceleration prior to the expiration of such five (5) Business Day period, it may effect such acceleration and shall send notice of such acceleration to the Second Priority Representative no later than contemporaneously with such acceleration, and (iii) five (5) Business Days prior to the First Priority Representative’s initiating proceedings to foreclose upon all or a material portion of the First Priority Collateral. The Second Priority Representative, on behalf of the Second Priority Creditors, shall have the right at any time (whether or not any notice described in the preceding sentence has been delivered or the time for such delivery has elapsed) to deliver a Buy Out Notice as provided for above in this Section 8.3(a). The First Priority Representative shall agree to forbear from accelerating the maturity of the First Priority Obligations or from exercising any Enforcement Action to realize upon any Lien of the First Priority Collateral if the First Priority Representative receives, on or before the fifth day following the date the acceleration notice is given, a Buy-Out Notice from the Second Priority Representative, on behalf of the Second Priority Creditors. (b) Upon receipt of a Buy Out Notice, the First Priority Representative shall promptly give notice to the Second Priority Representative (a “Payoff Letter”) of (i) the aggregate amount of First Priority Obligations outstanding and the per diem accrual rate with regard thereto, (ii) the details of the outstanding Swap Agreements and Cash Management Obligations and (iii) notice of any asserted claims of third parties against the First Priority Representative and the First Priority Creditors incurred in connection with the First Priority Documents. (c) No later than ten (10) Business Days after delivery of the Buy-Out Notice, the Second Priority Representative, on behalf of the Second Priority Creditors, shall (i) pay to the First Priority Representative an amount equal to the total First Priority Obligations (including those relating to accrued but unpaid interest, those relating to all Swap Agreements then due and outstanding and all Cash Management Obligations then due and outstanding) owing to each First Priority Creditor excluding the Unasserted Contingent Claims, (ii) take reasonable steps to ensure that all Swap Agreements are terminated or cash collateralized or back-stopped in a manner reasonably satisfactory to the First Priority Representative, (iii) take reasonable steps to ensure that all Cash Management Obligations are terminated or collateralized to the reasonable satisfaction of the obligee and (iv) provide assurances reasonably acceptable to the First Priority Representative that any claims of the First Priority Secured Parties against the Common Collateral for indemnification for claims listed in the Payoff Letter as contemplated by Section 8.3(b)(iii) and/or for Overadvances shall continue to be secured by the Common Collateral in the same priority as they were secured prior to the buyout. (d) Such purchase shall be expressly made without any representation or warranty of any kind by the First Priority Representative or the First Priority Lenders as to the First Priority Obligations so purchased or otherwise and without recourse to the First Priority Representative or any First Priority Lender, except that each First Priority Lender shall represent and warrant (i) the amount of the First Priority Obligations being purchased from it, (ii) that such First Priority Lender owns its portion of the First Priority Obligations so purchased free and clear of any Liens or encumbrances and (iii) such First Priority Lender has the right to assign such First Priority Obligations and the assignment is duly authorized by such First Priority Lender. (e) In addition, if the First Priority Representative has given notice in the Payoff Letter delivered pursuant to Section 8.3(b) that the First Priority Representative elects to be replaced as the First Priority Representative, it shall be entitled to resign at the closing of such purchase and shall be replaced by a designee of the Second Priority Required Lenders, but shall continue to be entitled to all the indemnification provided to resigning First Priority Representative pursuant to the Existing First Priority Agreement.

Appears in 1 contract

Samples: Intercreditor Agreement (RHI Entertainment, Inc.)

Buy Out Right. (a) Subject to the terms of this Section 8.39.3, at any time following the occurrence and during the continuance of a Senior Event of Default, the Second Priority Representative, on behalf of the Second Priority Creditors, Subordinated Lender shall have the right at any time, but not the obligation, obligation to deliver a notice to the First Priority Representative Senior Agent (a “Buy "Buy-Out Notice") to acquire all right, title and interest of the First Priority Senior Creditors in and under the Senior Documents. In addition, Senior Agent shall, to First Priority Obligations. Without limiting the foregoingextent it is not stayed or otherwise prevented by law from doing so, First Priority Representative shall give the Second Priority Representative, on behalf of the Second Priority Subordinated Creditors written notice with regard to the earliest of the following: (i) within five (5) Business Days any proposed acceleration or of its becoming aware that the First Priority Obligations Payment Date will occur on a date other than April 13, 2013, (ii) five (5) Business Days prior to the First Priority RepresentativeSenior Agent’s acceleration of the First Priority Obligations or any material portion thereof, provided, that if the First Priority Representative determines in good faith that the interests of the First Priority Secured Parties are at risk of being prejudiced if it does not effect such acceleration prior to the expiration of such five (5) Business Day period, it may effect such acceleration and shall send notice of such acceleration to the Second Priority Representative no later than contemporaneously with such acceleration, and (iii) five (5) Business Days prior to the First Priority Representative’s initiating proceedings intent to foreclose upon all or a material portion of the First Priority CollateralCollateral not less than five (5) days prior to taking such action. The Second Priority Representative, on behalf of the Second Priority Creditors, shall have the right at any time (whether or not any notice described in the preceding sentence has been delivered or the time for such delivery has elapsed) to deliver a Buy Out Notice as provided for above in this Section 8.3(a). The First Priority Representative Senior Agent shall agree to forbear from accelerating the maturity of the First Priority Obligations or from exercising any Enforcement Action to realize upon any Lien of the First Priority Collateral if the First Priority Representative Senior Agent receives, on or before the fifth day following the date the acceleration notice is given, a committed Buy-Out Notice from the Second Priority Representative, on behalf of the Second Priority Subordinated Creditors. (b) Upon receipt of a Buy Out Notice, the First Priority Representative shall promptly give notice to the Second Priority Representative (a “Payoff Letter”) of (i) the aggregate amount of First Priority Obligations outstanding and the per diem accrual rate with regard thereto, (ii) the details of the outstanding Swap Agreements and Cash Management Obligations and (iii) notice of any asserted claims of third parties against the First Priority Representative and the First Priority Creditors incurred in connection with the First Priority Documents. (c) . No later than ten (10) Business Days business days after delivery of the committed Buy-Out Notice, the Second Priority Representative, on behalf of the Second Priority Creditors, applicable Subordinated Creditors shall (i) pay to the First Priority Representative Senior Agent an amount equal to the total First Priority Senior Obligations (including those relating to accrued but unpaid interest, those relating to all Swap Agreements then due and outstanding and all Cash Management Obligations then due and outstanding) owing to each First Priority Creditor excluding the Unasserted Contingent ClaimsSenior Creditor, (ii) take reasonable steps to ensure that all Swap Agreements any outstanding Letters of Credit under the Existing Senior Credit Agreement are terminated (or cash collateralized or back-stopped defeased in a manner reasonably satisfactory to accordance with the First Priority Representative, (iii) take reasonable steps to ensure that all Cash Management Obligations are terminated or collateralized to the reasonable satisfaction terms of the obligee and (ivSenior Documents) provide assurances reasonably acceptable to the First Priority Representative that any claims of the First Priority Secured Parties against the Common Collateral for indemnification for claims listed in the Payoff Letter as contemplated by Section 8.3(b)(iii) and/or for Overadvances shall continue to be secured by the Common Collateral in the same priority as they were secured prior to the buyout. (d) Such purchase shall be expressly made without any representation or warranty of any kind by the First Priority Representative or the First Priority Lenders as to the First Priority Obligations so purchased or otherwise and without recourse to the First Priority Representative or any First Priority Lender, except that each First Priority Lender shall represent and warrant (i) the amount of the First Priority Obligations being purchased from it, (ii) that such First Priority Lender owns its portion of the First Priority Obligations so purchased free and clear of any Liens or encumbrances and (iii) such First Priority provide evidence acceptable to the Senior Agent in its sole discretion that all claims of third parties against the Senior Agent and the applicable Senior Creditors have been released (including, without limitation, any claims of any Production or Distribution Party). Upon the delivery of a Buy-Out Notice, the Subordinated Creditors shall be irrevocably committed to take each of the foregoing actions in clauses (i) through (iii) within ten (10) business days of the delivery thereof. Upon completion of the foregoing actions by the Subordinated Creditors, the Senior Agent shall assign to the Subordinated Lender all right, title and interest of the Senior Creditors under the Senior Documents (other than indemnification and other obligations that by the terms of the Senior Documents survive repayment of the Senior Obligations), without representation, warranty or recourse (other than the representation and warranty that the Senior Agent has the right to assign make such First Priority Obligations assignment and the such assignment is duly authorized made free of liens created by such First Priority Lenderthe assignee). (e) In addition, if the First Priority Representative has given notice in the Payoff Letter delivered pursuant to Section 8.3(b) that the First Priority Representative elects to be replaced as the First Priority Representative, it shall be entitled to resign at the closing of such purchase and shall be replaced by a designee of the Second Priority Required Lenders, but shall continue to be entitled to all the indemnification provided to resigning First Priority Representative pursuant to the Existing First Priority Agreement.

Appears in 1 contract

Samples: Subordination and Intercreditor Agreement

Buy Out Right. Upon the earlier of (ax) Subject to the terms Buy-Out Outside Date and (y) the occurrence of this Section 8.3a 2023 Capital Raise Event, the Second Priority Representative, on behalf of the Second Priority Creditors, shall have the right at any time, but not the obligation, to deliver a notice to the First Priority Representative (a “Buy Out Notice”) to acquire all right, title and interest of the First Priority Creditors in and to First Priority Obligations. Without limiting the foregoing, First Priority Representative shall give the Second Priority Representative, on behalf of the Second Priority Creditors written notice with regard to the earliest of the following: (i) within five (5) Business Days of its becoming aware that the First Priority Obligations Payment Date will occur on a date other than April 13, 2013, (ii) five (5) Business Days prior to the First Priority Representative’s acceleration of the First Priority Obligations or any material portion thereof, provided, that if the First Priority Representative determines in good faith that the interests of the First Priority Secured Parties are at risk of being prejudiced if it does not effect such acceleration prior to the expiration of such five (5) Business Day period, it may effect such acceleration and shall send notice of such acceleration to the Second Priority Representative no later than contemporaneously with such acceleration, and (iii) five (5) Business Days prior to the First Priority Representative’s initiating proceedings to foreclose upon all or a material portion of the First Priority Collateral. The Second Priority Representative, on behalf of the Second Priority Creditors, shall have the right at any time (whether or not any notice described in the preceding sentence has been delivered or the time for such delivery has elapsed) to deliver a Buy Out Notice as provided for above in this Section 8.3(a). The First Priority Representative shall agree to forbear from accelerating the maturity of the First Priority Obligations or from exercising any Enforcement Action to realize upon any Lien of the First Priority Collateral if the First Priority Representative receivesCompany shall, on or before the fifth day (5th) Business Day following such date but with five (5) Business Days’ notice (the date the acceleration notice is given, a Buy-Out Notice from Obligation Date”), repurchase the Second Priority RepresentativeNotes in whole, on behalf of and each Holder shall be obligated to surrender the Second Priority Creditors. Note in whole, at a price equal to 200% (bas it may be increased pursuant to Section 2(e) Upon receipt of a Buy Out Noticebelow, the First Priority Representative shall promptly give notice to the Second Priority Representative (a Payoff LetterBuy-Out Percentage”) of (i) the aggregate outstanding principal amount of First Priority Obligations outstanding such Note being repurchased on the date of such repurchase, together with any accrued but unpaid interest thereon to the date of such repurchase (the “Buy-Out Price”). On or after the date such repurchase is consummated pursuant to this clause (d) (the “Buy-Out Date”), each Holder of Notes shall surrender its certificates evidencing all Notes to be repurchased (or affidavits of loss) to the Company at its principal executive offices and the per diem accrual rate with regard thereto, (ii) the details of the outstanding Swap Agreements and Cash Management Obligations and (iii) notice of any asserted claims of third parties against the First Priority Representative and the First Priority Creditors incurred in connection with the First Priority Documents. (c) No later than ten (10) Business Days after delivery shall thereupon be entitled to receive payment of the Buy-Out NoticePrice for the Notes repurchased on the Buy-Out Date. Notwithstanding anything to the contrary in this clause (d), in the event that the Company is prohibited from effectuating the repurchase(s) described in this clause (d) and/or otherwise paying to the Holder the Buy-Out Price pursuant to the terms of the SWK Subordination Agreement, the Second Priority RepresentativeCompany shall cause the Buy-Out Date to occur on or before the fifth (5th) Business Day following the earlier of such prohibition being no longer applicable or the payment in full of all senior indebtedness described in the SWK Subordination Agreement, on behalf of the Second Priority Creditors, shall but with five (i5) pay Business Days’ notice. Notwithstanding anything to the First Priority Representative an amount equal contrary in this clause (d), any Notes to the total First Priority Obligations be repurchased pursuant to this clause (including those relating to accrued but unpaid interest, those relating to all Swap Agreements then due and outstanding and all Cash Management Obligations then due and outstandingd) owing to each First Priority Creditor excluding the Unasserted Contingent Claims, (ii) take reasonable steps to ensure that all Swap Agreements are terminated or cash collateralized or back-stopped in a manner reasonably satisfactory to the First Priority Representative, (iii) take reasonable steps to ensure that all Cash Management Obligations are terminated or collateralized to the reasonable satisfaction of the obligee and (iv) provide assurances reasonably acceptable to the First Priority Representative that any claims of the First Priority Secured Parties against the Common Collateral for indemnification for claims listed in the Payoff Letter as contemplated by Section 8.3(b)(iii) and/or for Overadvances shall continue to be secured by convertible in accordance with Section 4 until the Common Collateral in the same priority as they were secured prior to the buyoutBuy-Out Date. (d) Such purchase shall be expressly made without any representation or warranty of any kind by the First Priority Representative or the First Priority Lenders as to the First Priority Obligations so purchased or otherwise and without recourse to the First Priority Representative or any First Priority Lender, except that each First Priority Lender shall represent and warrant (i) the amount Section 2 of the First Priority Obligations being purchased from it, (ii) that such First Priority Lender owns its portion of the First Priority Obligations so purchased free and clear of any Liens or encumbrances and (iii) such First Priority Lender has the right to assign such First Priority Obligations and the assignment each Note is duly authorized hereby amended by such First Priority Lender. inserting a new clause (e) In addition, if the First Priority Representative has given notice in the Payoff Letter delivered pursuant to Section 8.3(b) that the First Priority Representative elects to be replaced as the First Priority Representative, it shall be entitled to resign at the closing end of such purchase and shall be replaced by a designee of the Second Priority Required Lenders, but shall continue to be entitled to all the indemnification provided to resigning First Priority Representative pursuant to the Existing First Priority Agreement.section as follows:

Appears in 1 contract

Samples: Amendment Agreement (Acer Therapeutics Inc.)

Buy Out Right. (a) Subject to the terms of this Section 8.3The Parties agree that for [***] period commencing on [***], the Second Priority Representative, on behalf of the Second Priority Creditors, Prometic and/or any Prometic Affiliate shall have the right at to purchase from SALP, and SALP shall have the obligation to sell to Prometic and/or any timesuch Prometic Affiliate, but not the obligation, to deliver a notice to the First Priority Representative (a “Buy Out Notice”) to acquire all rightof SALP’s rights, title and interest of the First Priority Creditors in and to First Priority Obligations. Without limiting the foregoing, First Priority Representative shall give the Second Priority Representative, on behalf of the Second Priority Creditors written notice with regard to the earliest of the following: (i) within five (5) Business Days of its becoming aware that the First Priority Obligations Payment Date will occur on a date other than April 13, 2013, (ii) five (5) Business Days prior to the First Priority Representative’s acceleration of the First Priority Obligations or any material portion thereof, provided, that if the First Priority Representative determines in good faith that the interests of the First Priority Secured Parties are at risk of being prejudiced if it does not effect such acceleration prior to the expiration of such five (5) Business Day period, it may effect such acceleration and shall send notice of such acceleration to the Second Priority Representative no later than contemporaneously with such acceleration, and (iii) five (5) Business Days prior to the First Priority Representative’s initiating proceedings to foreclose upon all or a material portion of the First Priority Collateral. The Second Priority Representative, on behalf of the Second Priority Creditors, shall have the right at any time (whether or not any notice described in the preceding sentence has been delivered or the time for such delivery has elapsed) to deliver a Buy Out Notice as provided for above in this Section 8.3(a). The First Priority Representative shall agree to forbear from accelerating the maturity of the First Priority Obligations or from exercising any Enforcement Action to realize upon any Lien of the First Priority Collateral if the First Priority Representative receivesAgreement, on or before the fifth day following the date the acceleration notice is given, a Buy-Out Notice from the Second Priority Representative, on behalf of the Second Priority Creditors. (b) Upon receipt of a Buy Out Notice, the First Priority Representative shall promptly give notice to the Second Priority Representative (a “Payoff Letter”) of including (i) the aggregate amount Royalty Entitlement (including any Royalty Entitlement that would have been payable in the future during the remaining term of First Priority Obligations outstanding this Agreement had the right under this Section 2(d) not been exercised) and the per diem accrual rate with regard thereto, (ii) any other amounts due and payable by Prometic and/or any Prometic Affiliate to SALP hereunder arising on or prior to the details date of closing of the outstanding Swap Agreements and Cash Management Obligations and acquisition of the SALP Interest by Prometic and/or any Prometic Affiliate, as applicable, pursuant to this Section 2(d) (iiiother than the right to receive the Buy-Out Fee) notice of any asserted claims of third parties against (the First Priority Representative and the First Priority Creditors incurred in connection with the First Priority Documents. (c“SALP Interest”) No later than ten (10) Business Days after delivery upon payment to SALP of the Buy-Out NoticeFee, which right will be exercisable by Prometic and/or any such Prometic Affiliate upon giving SALP at least a three (3) month prior written notice. The “Buy-Out Fee” shall mean the Second Priority Representative, amount payable by or on behalf of Prometic and/or any Prometic Affiliate to SALP for the Second Priority CreditorsSALP Interest, which amount shall (i) pay to the First Priority Representative an amount be equal to the total First Priority Obligations (including those relating to accrued but unpaid interestfair market value of the SALP Interest, those relating to all Swap Agreements then due and outstanding and all Cash Management Obligations then due and outstanding) owing to each First Priority Creditor excluding the Unasserted Contingent Claimsdetermined on a net present value basis, (ii) take reasonable steps to ensure that all Swap Agreements are terminated or cash collateralized or back-stopped in a manner reasonably satisfactory having regarding to the First Priority Representative, (iii) take reasonable steps to ensure that all Cash Management Obligations are terminated or collateralized to the reasonable satisfaction remaining life of the obligee Patents (and (ivany relevant extensions or additional exclusivity periods that may be associated with such Patents or Products sold thereunder) provide assurances reasonably acceptable and associated cash flows, all as determined pursuant to the First Priority Representative that any claims of the First Priority Secured Parties against the Common Collateral for indemnification for claims listed a valuation performed by a mutually agreed upon third party, such as an independent investment bank or consultancy firm skilled in the Payoff Letter as contemplated by Section 8.3(b)(iii) and/or for Overadvances valuation of assets of a similar nature. The parties shall continue negotiate acting reasonably and in good faith to be secured by the Common Collateral in the same priority as they were secured prior mutually agree upon a third party to the buyout. (d) Such purchase shall be expressly made without any representation or warranty of any kind by the First Priority Representative or the First Priority Lenders as to the First Priority Obligations so purchased or otherwise and without recourse to the First Priority Representative or any First Priority Lender, except that each First Priority Lender shall represent and warrant (i) determine the amount of the First Priority Obligations being purchased from itBuy-Out Fee, but if they are unable to do so within a thirty (ii30) that day period then any party hereto may apply to the Ontario Superior Court of Justice for the purposes of having the court appoint such First Priority Lender owns its portion a third party. The Buy-Out Fee shall be paid concurrently with the closing of the First Priority Obligations so purchased free acquisition of the SALP Interest by Prometic and/or a Prometic Affiliate, as applicable, and clear may be payable, at SALP’s option, in Prometic Life Sciences Inc.’s common shares, cash or a combination thereof, such option to be exercised by SALP at least 10 days prior to the payment of the Buy-Out Fee, and any Liens payment in common shares shall be based on the fair market value thereof, which fair market value shall be deemed to be, if the common shares are listed on the TSX or encumbrances and (iii) any other exchange, the volume weighted average price of such First Priority Lender has common shares on the five trading days immediately prior to SALP’s exercise of its option to receive the Buy-Out Fee in common shares, or any other calculation method mandated by the TSX or such other exchange. Prometic shall use its commercially reasonable efforts to obtain the prior approval of the TSX in connection with SALP’s option to receive the Buy-Out Fee in common shares at the time of obtaining the initial approval of the TSX of this Agreement. Following the exercise of this Buy-Out Right in accordance with this Section 2(d), SALP shall have no further rights under this Agreement except for the right to assign such First Priority Obligations receive the Buy-Out Fee, and this Agreement shall terminate and be of no further force and effect, except for those provisions which by their terms or nature are intended to survive the assignment is duly authorized by such First Priority Lender. (e) In addition, if the First Priority Representative has given notice in the Payoff Letter delivered pursuant to Section 8.3(b) that the First Priority Representative elects to be replaced as the First Priority Representative, it shall be entitled to resign at the closing termination of such purchase and shall be replaced by a designee of the Second Priority Required Lenders, but shall continue to be entitled to all the indemnification provided to resigning First Priority Representative pursuant to the Existing First Priority this Agreement.

Appears in 1 contract

Samples: Royalty Stream Purchase Agreement (Liminal BioSciences Inc.)

Buy Out Right. (a) Subject Without prejudice to the enforcement of the Revolving Credit Claimholders’ remedies, the Revolving Credit Claimholders agree at any time following an acceleration of the Revolving Credit Obligations in accordance with the terms of this the Revolving Credit Agreement or, if any Grantor shall be subject to any Insolvency or Liquidation Proceeding, following a determination by the Revolving Administrative Agent to agree to permit a sale of the Revolving Credit Priority Collateral free and clear of Liens or other claims under Section 8.3363 of the Bankruptcy Code or otherwise, the Revolving Credit Claimholders will offer the Second Priority RepresentativeLien Term Loan Claimholders the option to purchase the entire aggregate amount of outstanding Revolving Credit Obligations (including unfunded commitments under the Revolving Credit Agreement) at par plus accrued interest, without warranty or representation or recourse, on behalf of the Second Priority Creditors, shall have the right at any time, but not the obligation, to deliver a notice to the First Priority Representative (a “Buy Out Notice”) to acquire all right, title and interest of the First Priority Creditors in and to First Priority Obligations. Without limiting the foregoing, First Priority Representative shall give the Second Priority Representative, on behalf of the Second Priority Creditors written notice with regard to the earliest of the following: (i) within five (5) Business Days of its becoming aware that the First Priority Obligations Payment Date will occur on a date other than April 13, 2013, (ii) five (5) Business Days prior to the First Priority Representative’s acceleration of the First Priority Obligations or any material portion thereof, provided, that if the First Priority Representative determines in good faith that the interests of the First Priority Secured Parties are at risk of being prejudiced if it does not effect such acceleration prior to the expiration of such five (5) Business Day period, it may effect such acceleration and shall send notice of such acceleration to the Second Priority Representative no later than contemporaneously with such acceleration, and (iii) five (5) Business Days prior to the First Priority Representative’s initiating proceedings to foreclose upon all or a material portion of the First Priority Collateralpro rata basis across Revolving Credit Claimholders. The Second Priority Representative, on behalf of the Second Priority Creditors, Lien Term Loan Claimholders shall have the right at any time (whether irrevocably accept or not any notice described in the preceding sentence has been delivered or the time for reject such delivery has elapsed) to deliver a Buy Out Notice as provided for above in this Section 8.3(a). The First Priority Representative shall agree to forbear from accelerating the maturity of the First Priority Obligations or from exercising any Enforcement Action to realize upon any Lien of the First Priority Collateral if the First Priority Representative receives, on or before the fifth day following the date the acceleration notice is given, a Buy-Out Notice from the Second Priority Representative, on behalf of the Second Priority Creditors. (b) Upon receipt of a Buy Out Notice, the First Priority Representative shall promptly give notice to the Second Priority Representative (a “Payoff Letter”) of (i) the aggregate amount of First Priority Obligations outstanding and the per diem accrual rate with regard thereto, (ii) the details of the outstanding Swap Agreements and Cash Management Obligations and (iii) notice of any asserted claims of third parties against the First Priority Representative and the First Priority Creditors incurred in connection with the First Priority Documents. (c) No later than offer within ten (10) Business Days after delivery of the Buy-Out Noticereceipt thereof and the parties shall endeavor to close promptly thereafter. If the Second Lien Term Loan Claimholders accept such offer, it shall be exercised pursuant to documentation mutually acceptable to each of the Revolving Collateral Agent and the Second Lien Term Loan Collateral Agent; provided, that such purchase and sale documentation shall not impose additional obligations or liabilities on Parent or its Subsidiaries, or make any applicable Credit Document more restrictive on Parent or its Subsidiaries, without the consent of the Company; and provided, further, that to the extent that any purchased Revolving Credit Obligations constitute letters of credit, the Second Priority Representative, on behalf of the Second Priority Creditors, applicable purchaser shall (i) pay to the First Priority Representative an amount equal to the total First Priority Obligations (including those relating to accrued but unpaid interest, those relating to all Swap Agreements then due and outstanding and all Cash Management Obligations then due and outstanding) owing to each First Priority Creditor excluding the Unasserted Contingent Claims, (ii) take reasonable steps to ensure that all Swap Agreements are terminated or cash collateralized or back-stopped in a manner reasonably satisfactory to the First Priority Representative, (iii) take reasonable steps to ensure that all Cash Management Obligations are terminated or collateralized to the reasonable satisfaction of the obligee and (iv) provide assurances be reasonably acceptable to the First Priority Representative that any claims of issuing bank with regard thereto. If the First Priority Secured Parties against Second Lien Term Loan Claimholders reject such offer (or do not so irrevocably accept such offer within the Common Collateral for indemnification for claims listed in required timeframe), the Payoff Letter as contemplated by Section 8.3(b)(iii) and/or for Overadvances Revolving Credit Claimholders shall continue to be secured by the Common Collateral in the same priority as they were secured prior to the buyout. (d) Such purchase shall be expressly made without any representation or warranty of any kind by the First Priority Representative or the First Priority Lenders as to the First Priority Obligations so purchased or otherwise and without recourse to the First Priority Representative or any First Priority Lender, except that each First Priority Lender shall represent and warrant (i) the amount of the First Priority Obligations being purchased from it, (ii) that such First Priority Lender owns its portion of the First Priority Obligations so purchased free and clear of any Liens or encumbrances and (iii) such First Priority Lender has the right to assign such First Priority Obligations and the assignment is duly authorized by such First Priority Lender. (e) In addition, if the First Priority Representative has given notice in the Payoff Letter delivered have no further obligations pursuant to this Section 8.3(b) that the First Priority Representative elects to be replaced as the First Priority Representative, it shall be entitled to resign at the closing of such purchase and shall be replaced by a designee of the Second Priority Required Lenders, but shall continue to be entitled to all the indemnification provided to resigning First Priority Representative pursuant to the Existing First Priority Agreement3.4.

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Samples: Intercreditor Agreement (Dura Automotive Systems Inc)