Buyout Option. (a) In the event that CPLP delivers an Objection Notice, SSC shall have the right exercisable by delivering a written notice, not more that five (5) Business Days after the Objection Date, to CPLP stating that it elects to exercise its Buyout Option (a "Buyout Exercise Notice") to purchase all but not less than all of the Buyout Securities (as defined below) for a cash purchase price equal to all principal and interest due to CPLP with respect to the Loan and CPLP's pro rata portion of any fees payable to it under this Agreement (the "Buyout Option"). If SSC does not deliver a Buyout Exercise Notice in accordance with the -97- terms of this Section 14.02, then SSC shall be deemed to have waived its Buyout Option as to the transactions stated in the Buyout Exercise Notice, and the parties may not proceed with the SSC Transaction that is the subject of such Objection Notice. (b) If a Buyout Exercise Notice is delivered, CPLP, within five (5) Business Days of delivery of such Buyout Exercise Notice, may request by written notice to the Parent and SSC (a "Referral Notice") that a committee comprised of all of the independent directors of the Borrower not affiliated with SSC, CPLP or the Parent's management (the "Fairness Committee") review and approve the SSC Transaction that is the subject of the Buyout Exercise Notice (a "Referred SSC Transaction") as to its fairness to the Parent and its unaffiliated shareholders. The Parent shall cause a Fairness Committee to be appointed within five (5) Business Days of its receipt of a Referral Notice. In the event that the Fairness Committee reviews and approves as fair to Parent and its unaffiliated shareholders the Referred SSC Transaction as proposed by SSC or if the Fairness Committee modifies the Referred SSC Transaction, and as modified approves the Referred SSC Transaction as fair to the Parent and its unaffiliated shareholders, CPLP shall be deemed to have consented to the SSC Transaction as so approved. In the event that CPLP requests that an SSC Transaction be reviewed by a Fairness Committee, such request shall be irrevocable, SSC shall not have any rights to exercise a Buyout Option in connection with such Referred SSC Transaction, and Section 14.03 shall not apply to such Referred SSC Transaction. (c) If SSC elects to exercise the Buyout Option and CPLP does not timely deliver a Referral Notice pursuant to Section 14.02(b), then the closing of the Buyout Option shall occur on the 30th day following the delivery of the Buyout Exercise Notice.
Appears in 1 contract
Buyout Option. (a) a. In the event of any Event of Default under and as defined in the Credit Agreement that CPLP delivers an Objection Noticecontinues unwaived or uncured for a period of 30 consecutive days (except for Events of Default that do not result in ABL Lender (i) ceasing to make advances under the Credit Agreement or (ii) charging the default interest rate under the Credit Agreement), SSC ABL Lender shall have promptly deliver to Note Agent (for further delivery to the right exercisable by delivering Note Secured Parties) a written notice, not more that five (5) Business Days after the Objection Date, which notice shall describe such event with reasonable specificity. Such written notice shall constitute an offer by ABL Lender to CPLP stating that it elects to exercise its Buyout Option (a "Buyout Exercise Notice") to purchase all but not less than sell all of the Buyout Securities ABL Obligations to the Note Secured Parties for an amount, payable in cash, equal to the unpaid principal balance of the ABL Obligations plus all accrued interest, fees (including, without limitation, any Early Termination Fee (as defined belowin the Credit Agreement)), indemnities and other amounts accrued under the Credit Agreement and other documents evidencing ABL Obligations (the “Purchase Price”).
b. The Note Secured Parties must exercise their rights under subsection (a) for a within 10 business days of their receipt of written notice referred to in subsection (a) from ABL Lender, and if the offer is accepted, consummation of the purchase and sale shall take place within 10 business days after acceptance pursuant to documentation reasonably acceptable to ABL Lender. Payment of the Purchase Price shall be made in cash in immediately available funds against delivery by XXX Xxxxxx of (i) all instruments of conveyance reasonably requested by Note Agent and (ii) all possessory ABL Priority Collateral.
c. Any such purchase price equal to all principal and interest due to CPLP with respect to the Loan and CPLP's pro rata portion sale shall be expressly made without representation or warranty of any fees payable kind by and without recourse to it under this Agreement ABL Lender, except that ABL Lender shall represent and warrant: (i) that such ABL Lender owns its ABL Obligations free and clear of any liens or encumbrances and (ii) such ABL Lender has the "Buyout Option")right to assign its ABL Obligations and the assignment is duly authorized. If SSC does not deliver a Buyout Exercise Notice XXX Xxxxxx shall in accordance with the -97- terms of this Section 14.02good faith stipulate, then SSC shall be deemed to have waived its Buyout Option in writing, as to the transactions stated in the Buyout Exercise Notice, and the parties may not proceed with the SSC Transaction that is the subject of such Objection Notice.
(b) If a Buyout Exercise Notice is delivered, CPLP, within five (5) Business Days of delivery of such Buyout Exercise Notice, may request by written notice to the Parent and SSC (a "Referral Notice") that a committee comprised of all amount of the independent directors of the Borrower not affiliated with SSC, CPLP or the Parent's management (the "Fairness Committee") review and approve the SSC Transaction that is the subject of the Buyout Exercise Notice (a "Referred SSC Transaction") as to its fairness to the Parent and its unaffiliated shareholders. The Parent shall cause a Fairness Committee to be appointed within five (5) Business Days of its receipt of a Referral Notice. In the event that the Fairness Committee reviews and approves as fair to Parent and its unaffiliated shareholders the Referred SSC Transaction as proposed by SSC or if the Fairness Committee modifies the Referred SSC Transaction, and as modified approves the Referred SSC Transaction as fair to the Parent and its unaffiliated shareholders, CPLP shall be deemed to have consented to the SSC Transaction as so approved. In the event that CPLP requests that an SSC Transaction be reviewed by a Fairness Committee, such request shall be irrevocable, SSC shall not have any rights to exercise a Buyout Option in connection with such Referred SSC Transaction, and Section 14.03 shall not apply to such Referred SSC Transaction.
(c) If SSC elects to exercise the Buyout Option and CPLP does not timely deliver a Referral Notice pursuant to Section 14.02(b), then the closing of the Buyout Option shall occur ABL Obligations being purchased on the 30th day following the delivery date of the Buyout Exercise Noticepurchase.
Appears in 1 contract
Buyout Option. (a) In the event that CPLP delivers an Objection Notice, SSC shall have the right exercisable by delivering a written notice, not more that five (5) Business Days after the Objection Date, to CPLP stating that it elects to exercise its Buyout Option (a "Buyout Exercise Notice") to purchase all but not less than all of the Buyout Securities (as defined below) for a cash purchase price equal to all principal and interest due to CPLP with respect to the Loan and CPLP's pro rata portion of any fees payable to it under this Agreement (the "Buyout Option"). If SSC does not deliver a Buyout Exercise Notice in accordance with the -97- terms of this Section 14.02, then SSC shall be deemed to have waived its Buyout Option as to the transactions stated in the Buyout Exercise Notice, and the parties may not proceed with the SSC Transaction that is the subject of such Objection Notice.
(b) If a Buyout Exercise Notice is delivered, CPLP, within five (5) Business Days of delivery of such Buyout Exercise Notice, may request by written notice to the Parent and SSC (a "Referral Notice") that a committee comprised of all of the independent directors of the Borrower not affiliated with SSC, CPLP or the Parent's management (the "Fairness Committee") review and approve the SSC Transaction that is the subject of the Buyout Exercise Notice (a "Referred SSC Transaction") as to its fairness to the Parent and its unaffiliated shareholders. The Parent shall cause a Fairness Committee to be appointed within five (5) Business Days of its receipt of a Referral Notice. In the event that the Fairness Committee reviews and approves as fair to Parent and its unaffiliated shareholders the Referred SSC Transaction as proposed by SSC or if the Fairness Committee modifies the Referred SSC Transaction, and as modified approves the Referred SSC Transaction as fair to the Parent and its unaffiliated shareholders, CPLP shall be deemed to have consented to the SSC Transaction as so approved. In the event that CPLP requests that an SSC Transaction be reviewed by a Fairness Committee, such request shall be irrevocable, SSC shall not have any rights to exercise a Buyout Option in connection with such Referred SSC Transaction, and Section 14.03 shall not apply to -97- such Referred SSC Transaction.
(c) If SSC elects to exercise the Buyout Option and CPLP does not timely deliver a Referral Notice pursuant to Section 14.02(b), then the closing of the Buyout Option shall occur on the 30th day following the delivery of the Buyout Exercise Notice.
Appears in 1 contract
Samples: Senior Loan Agreement (DSW Inc.)
Buyout Option. At any time during any Buyout Exercise Period, the Tranche B Lender may (abut shall not be obligated to) In give notice to the event that CPLP delivers an Objection NoticeAgent (the “BUYOUT ACCEPTANCE NOTICE”) of its intent to cause the assignment to the Tranche B Lender, SSC or its designee, by the Revolving Credit Lenders, of all right, title and interest in, to, arising under or in respect of all Obligations of the Revolving Credit Lenders. Such assignments shall have be effected on the right exercisable by delivering a written notice, Business Day which is not more that five than three (53) Business Days after following the Objection DateBuyout Acceptance Notice by the execution, to CPLP stating that it elects to exercise its Buyout Option (a "Buyout Exercise Notice") to purchase all but not less than all by the Revolving Credit Lenders, of an Assignment and Acceptance in exchange for the payment, in immediately available funds, of the Buyout Securities amount of the Obligations in respect of the Revolving Credit Loans (as defined belowexcluding the Revolving Credit Early Termination Fee) for a and cash purchase price equal to all principal and interest due to CPLP collateral with respect to the Loan Maximum Drawing Amount and CPLP's pro rata portion all Unpaid Reimbursement Obligations in the amount of 105% of the face amount of Letter of Credit, in each case (and cash collateral) as of the date on which such assignment is made. The Tranche B Lender’s buy out right under this Section 3.6 may only be exercised completely with respect to all of the Obligations of the Revolving Credit Lenders. Following its exercise of the buy out right under this Section 3.6, the Tranche B Lender shall, during the first 180 days following exercise of the buyout right and payment in full therefor, (a) not waive or alter the Revolving Credit Early Termination Fee or alter the payment provisions in Section 13.5 to change when the Revolving Credit Early Termination Fee would be paid and (b) upon receipt during said 180-day period of any fees payable amounts on account of the Revolving Credit Early Termination Fee, pay such amounts to it under this Agreement (the "Buyout Option"). If SSC does not deliver a Buyout Exercise Notice Agent for the account of the Revolving Credit Lenders in accordance with their Commitment Percentages as of the -97- terms date of the buy out under this Section 14.02, then SSC shall be deemed to have waived its Buyout Option as to the transactions stated in the Buyout Exercise Notice, and the parties may not proceed with the SSC Transaction that is the subject of such Objection Notice3.6.
(b) If a Buyout Exercise Notice is delivered, CPLP, within five (5) Business Days of delivery of such Buyout Exercise Notice, may request by written notice to the Parent and SSC (a "Referral Notice") that a committee comprised of all of the independent directors of the Borrower not affiliated with SSC, CPLP or the Parent's management (the "Fairness Committee") review and approve the SSC Transaction that is the subject of the Buyout Exercise Notice (a "Referred SSC Transaction") as to its fairness to the Parent and its unaffiliated shareholders. The Parent shall cause a Fairness Committee to be appointed within five (5) Business Days of its receipt of a Referral Notice. In the event that the Fairness Committee reviews and approves as fair to Parent and its unaffiliated shareholders the Referred SSC Transaction as proposed by SSC or if the Fairness Committee modifies the Referred SSC Transaction, and as modified approves the Referred SSC Transaction as fair to the Parent and its unaffiliated shareholders, CPLP shall be deemed to have consented to the SSC Transaction as so approved. In the event that CPLP requests that an SSC Transaction be reviewed by a Fairness Committee, such request shall be irrevocable, SSC shall not have any rights to exercise a Buyout Option in connection with such Referred SSC Transaction, and Section 14.03 shall not apply to such Referred SSC Transaction.
(c) If SSC elects to exercise the Buyout Option and CPLP does not timely deliver a Referral Notice pursuant to Section 14.02(b), then the closing of the Buyout Option shall occur on the 30th day following the delivery of the Buyout Exercise Notice.
Appears in 1 contract
Buyout Option. (a) For purposes of this Section 9.03, the terms "Specified Investment Asset" and "Terminal Market Value" shall have the respective meanings ascribed thereto in Schedule 2.02 to this Agreement. Following the payment by the Acquiring Parties to MONY of the Consideration pursuant to Section 2.02 hereof, MONY shall have the option (a "Buyout Option") to purchase from AUSA Life (subject to the approval of the New York Insurance Department) any then outstanding Specified Investment Asset held by AUSA Life at a purchase price, in cash, equal to the Terminal Market Value of such Specified Investment Asset. MONY shall be entitled to exercise the Buyout Option with respect to one or more Specified Investment Assets by giving AUSA Life written notice of such exercise, at any time until the thirtieth day following such payment of the Consideration. MONY shall submit each such notice of exercise to the New York Insurance Department promptly following delivery thereof to AUSA Life and shall use commercially reasonable efforts to obtain the approval of the New York Insurance Department for such purchase as soon as practical thereafter.
(b) In the event that CPLP delivers an Objection Notice, SSC shall have the right exercisable by delivering a written notice, not more that five (5) Business Days after New York Insurance Department approves the Objection Date, to CPLP stating that it elects to exercise its Buyout Option (a "Buyout Exercise Notice") to purchase all but not less than all of the Buyout Securities (as defined below) for a cash purchase price equal to all principal and interest due to CPLP with respect to the Loan and CPLP's pro rata portion of any fees payable to it under this Agreement (the "Buyout Option"). If SSC does not deliver a Buyout Exercise Notice in accordance with the -97- terms of this Section 14.02, then SSC shall be deemed to have waived its Buyout Option as to the transactions stated in the Buyout Exercise Notice, and the parties may not proceed with the SSC Transaction that is the subject of such Objection Notice.
(b) If a Buyout Exercise Notice is delivered, CPLP, within five (5) Business Days of delivery of such Buyout Exercise Notice, may request by written notice to the Parent and SSC (a "Referral Notice") that a committee comprised of all of the independent directors of the Borrower not affiliated with SSC, CPLP or the Parent's management (the "Fairness Committee") review and approve the SSC Transaction that is the subject of the Buyout Exercise Notice (a "Referred SSC Transaction") as to its fairness to the Parent and its unaffiliated shareholders. The Parent shall cause a Fairness Committee to be appointed within five (5) Business Days of its receipt of a Referral Notice. In the event that the Fairness Committee reviews and approves as fair to Parent and its unaffiliated shareholders the Referred SSC Transaction as proposed by SSC or if the Fairness Committee modifies the Referred SSC TransactionSpecified Investment Asset specified in any such notice of exercise, and as modified approves the Referred SSC Transaction as fair to the Parent and its unaffiliated shareholders, CPLP shall be deemed to have consented to the SSC Transaction as so approved. In the event that CPLP requests that an SSC Transaction be reviewed by a Fairness Committee, such request shall be irrevocable, SSC shall not have any rights to exercise a Buyout Option in connection with such Referred SSC Transaction, and Section 14.03 shall not apply to such Referred SSC Transaction.
(c) If SSC elects to exercise the Buyout Option and CPLP does not timely deliver a Referral Notice pursuant to Section 14.02(b), then the closing of the Buyout Option purchase of such Specified Investment Asset shall occur be held at the offices of AUSA Life on the 30th day third Business Day following the delivery receipt of such approval of the Buyout Exercise NoticeDepartment, or at such other place and time (following receipt of such approval) as the parties may mutually agree upon. Each sale of a Specified Investment Asset pursuant to this Section shall be by appropriate transfer documents, and AUSA Life shall represent and warrant that it has not sold, assigned, transferred, modified or hypothecated such Specified Investment Asset to any other party or taken any action that would have a material adverse effect on the rights of the holder of such Specified Investment Asset with respect thereto (except for any such actions taken by the Manager as the agent of AUSA Life or at the direction of the Manager pursuant to the Investment Management Agreement).
Appears in 1 contract
Samples: Asset Transfer and Acquisition Agreement (Mony Holdings LLC)
Buyout Option. (a) In the event that CPLP delivers an Objection Notice, SSC shall have the right exercisable by delivering a written notice, not more that five (5) Business Days after the Objection Date, to CPLP stating that it elects to exercise its Buyout Option (a "Buyout Exercise NoticeBUYOUT EXERCISE NOTICE") to purchase all but not less than all of the Buyout Securities (as defined below) for a cash purchase price equal to all principal and interest due to CPLP pursuant to the Term Loan Agreement, all principal and interest due to CPLP with respect to the Loan and CPLP's pro rata portion of any fees payable to it under the Term Loan Agreement or this Agreement (the "Buyout OptionBUYOUT OPTION"); PROVIDED, HOWEVER, that if CPLP has exercised a portion of the Warrants that would otherwise be deemed Allocated Warrants (the shares of Common Stock issued upon exercise of the Allocated Warrants shall be referred to as the "ALLOCATED SHARES"), then the purchase price paid by SSC for the Buyout Option shall be reduced (by an amount not less than zero)
(i) if CPLP then owns all or a portion of the Allocated Shares, by the product of (a) the number of Allocated Shares then owned and (b) the difference between the Current Market Price on the date of the Buyout Exercise Notice and the exercise price paid by CPLP for such Allocated Shares or (ii) if CPLP has sold all or a portion of the Allocated Shares, by the product of (x) the number of Allocated Shares so sold and (y) the difference between the consideration received by CPLP upon the sale of the Allocated Shares so sold and the exercise price paid by CPLP for such Allocated Shares; PROVIDED, FURTHER, that if CPLP has acquired the Allocated Shares via cashless exercise, the foregoing computation shall be made as if such exercise had been a cash exercise. If SSC does not deliver a Buyout Exercise Notice in accordance with the -97- terms of this Section 14.02, then SSC shall be deemed to have waived its Buyout Option as to the transactions stated in the Buyout Exercise Notice, and the parties may not proceed with the SSC Transaction that is the subject of such Objection Notice.
(b) If a Buyout Exercise Notice is delivered, CPLP, within five (5) Business Days of delivery of such Buyout Exercise Notice, may request by written notice to the Parent Borrower and SSC (a "Referral NoticeREFERRAL NOTICE") that a committee comprised of all of the independent directors of the Borrower not affiliated with SSC, CPLP or the ParentBorrower's management (the "Fairness CommitteeFAIRNESS COMMITTEE") review and approve the SSC Transaction that is the subject of the Buyout Exercise Notice (a "Referred REFERRED SSC TransactionTRANSACTION") as to its fairness to the Parent Borrower and its unaffiliated shareholders. The Parent Borrower shall cause a Fairness Committee to be appointed within five (5) Business Days of its receipt of a Referral Notice. In the event that the Fairness Committee reviews and approves as fair to Parent Borrower and its unaffiliated shareholders the Referred SSC Transaction as proposed by SSC or if the Fairness Committee modifies the Referred SSC Transaction, and as modified approves the Referred SSC Transaction as fair to the Parent Borrower and its unaffiliated shareholders, CPLP shall be deemed to have consented to the SSC Transaction as so approved. In the event that CPLP requests that an SSC Transaction be reviewed by a Fairness Committee, such request shall be irrevocable, SSC shall not have any rights to exercise a Buyout Option in connection with such Referred SSC Transaction, and Section 14.03 shall not apply to such Referred SSC Transaction.
(c) If SSC elects to exercise the Buyout Option and CPLP does not timely deliver a Referral Notice pursuant to Section 14.02(b), then the closing of the Buyout Option regarding the amounts payable under the Term Loan Agreement shall occur on the 30th day following the delivery of the Buyout Exercise Notice. CPLP shall have the right to convert or elect not to convert any portion of the Loan payable to CPLP for a period of up to 30 days following the delivery of the Buyout Exercise Notice. The closing of the Buyout Option regarding the portion of the Loan payable to CPLP shall occur on the earlier to occur of (i) the 30th day following the delivery by CPLP to the Borrower and SSC of a notice that it does not elect to convert the outstanding portion of the Loan payable to it or specifying which portion of the Loan it does elect to convert (the "CPLP NON-CONVERSION NOTICE") and (ii) the 60th day following the delivery of a Buyout Exercise Notice.
Appears in 1 contract
Samples: Senior Convertible Loan Agreement (Value City Department Stores Inc /Oh)