Forward Purchase Securities (i) The Company shall issue and sell to the Purchaser, and the Purchaser shall purchase from the Company, 2,500,000 Forward Purchase Units for a purchase price of $10.00 per Forward Purchase Unit, or $25,000,000 in the aggregate (the “Forward Purchase Price”).
(ii) Each Forward Purchase Warrant will have the same terms as each Private Placement Warrant, and will be subject to the terms and conditions of the Warrant Agreement to be entered into between the Company and Continental Stock Transfer & Trust Company, as Warrant Agent, in connection with the IPO (the “Warrant Agreement”). Each Forward Purchase Warrant will entitle the holder thereof to purchase one Class A Share at a price of $11.50 per share, subject to adjustment as described in the Warrant Agreement, and only whole Forward Purchase Warrants will be exercisable. The Forward Purchase Warrants will become exercisable on the later of 30 days after the Business Combination Closing and 12 months from the IPO Closing, and will expire five years after the Business Combination Closing or earlier upon the liquidation of the Company, as described in the Warrant Agreement. The Forward Purchase Warrants will be non-redeemable and exercisable on a cashless basis so long as they are held by the Purchaser or its Permitted Transferees (as defined below). For so long as the Forward Purchase Warrants are held by the Purchaser or its Permitted Transferees, the Forward Purchase Warrants will not be exercisable more than five years from the effective date of the Registration Statement in accordance with FINRA Rule 5110(f)(2)(G)(i). If the Forward Purchase Warrants are held by Persons (as defined below) other than the Purchaser or its Permitted Transferees, the Forward Purchase Warrants will have the same terms as the Public Warrants, as set forth in the Warrant Agreement.
(iii) The Company shall require the Purchaser to purchase the Forward Purchase Units by delivering notice to the Purchaser, at least five (5) Business Days before the Business Combination Closing, specifying the date of the Business Combination Closing and instructions for wiring the Forward Purchase Price. The closing of the sale of Forward Purchase Units (the “Forward Closing”) shall be held on the same date and immediately prior to the Business Combination Closing (such date being referred to as the “Forward Closing Date”). At least one (1) Business Day prior to the Forward Closing Date, the Purchaser shall deliver to the Company, to be held in escrow until the Forward Closing, the Forward Purchase Price for the Forward Purchase Securities by wire transfer of U.S. dollars in immediately available funds to the account specified by the Company in such notice. Immediately prior to the Forward Closing on the Forward Closing Date, (A) the Forward Purchase Price shall be released from escrow automatically and without further action by the Company or the Purchaser, and (B) upon such release, the Company shall issue the Forward Purchase Units to the Purchaser in book-entry form, free and clear of any liens or other restrictions whatsoever (other than those arising under state or federal securities laws), registered in the name of the Purchaser (or its nominee in accordance with its delivery instructions), or to a custodian designated by the Purchaser, as applicable. In the event the Business Combination Closing does not occur on the date scheduled for closing, the Forward Closing shall not occur and the Company shall promptly (but not later than one (1) Business Day thereafter) return the Forward Purchase Price to the Purchaser. For purposes of this Agreement, “Business Day” means any day, other than a Saturday or a Sunday, that is neither a legal holiday nor a day on which banking institutions are generally authorized or required by law or regulation to close in the City of New York, New York.
VWAP Purchases Upon the initial satisfaction of all of the conditions set forth in Section 7.2 (the “Commencement” and the date of initial satisfaction of all of such conditions, the “Commencement Date”) and from time to time thereafter, subject to the satisfaction of all of the conditions set forth in Section 7.3, the Company shall have the right, but not the obligation, to direct the Investor, by its timely delivery to the Investor of a VWAP Purchase Notice for a VWAP Purchase (each, a “VWAP Purchase”), specifying in such VWAP Purchase Notice (a) the VWAP Purchase Percentage for such VWAP Purchase and (b) whether a Limit Order Continue Election or a Limit Order Discontinue Election shall apply to such VWAP Purchase, on the applicable Purchase Date therefor, to purchase a specified VWAP Purchase Share Amount, which shall not exceed the applicable VWAP Purchase Maximum Amount, at the applicable VWAP Purchase Price therefor on such Purchase Date in accordance with this Agreement. The Company may timely deliver to the Investor a VWAP Purchase Notice for a VWAP Purchase on any Trading Day selected by the Company as the Purchase Date for such VWAP Purchase, so long as (i) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding such Purchase Date is not less than the Threshold Price, and (ii) all Shares subject to all prior VWAP Purchases and Intraday VWAP Purchases (as applicable) pursuant to this Agreement have been received by the Investor as DWAC Shares prior to the Company’s delivery to the Investor of such VWAP Purchase Notice for such VWAP Purchase on such Purchase Date. The Investor is obligated to accept each VWAP Purchase Notice prepared and delivered by the Company in accordance with the terms of and subject to the satisfaction of the conditions contained in this Agreement. If the Company delivers any VWAP Purchase Notice directing the Investor to purchase a VWAP Purchase Share Amount in excess of the applicable VWAP Purchase Maximum Amount that the Company is then permitted to include in such VWAP Purchase Notice (taking into account the VWAP Purchase Percentage specified by the Company in the applicable VWAP Purchase Notice for such VWAP Purchase), such VWAP Purchase Notice shall be void ab initio to the extent of the amount by which the VWAP Purchase Share Amount set forth in such VWAP Purchase Notice exceeds such applicable VWAP Purchase Maximum Amount, and the Investor shall have no obligation to purchase, and shall not purchase, such excess Shares pursuant to such VWAP Purchase Notice; provided, however, that the Investor shall remain obligated to purchase the applicable VWAP Purchase Maximum Amount pursuant to such VWAP Purchase. At or prior to 5:30 p.m., New York City time, on the Purchase Date for each VWAP Purchase, the Investor shall provide to the Company, by email correspondence to each of the individual notice recipients of the Company set forth in the applicable VWAP Purchase Notice, a written confirmation for such VWAP Purchase, setting forth the applicable VWAP Purchase Price per Share to be paid by the Investor for the Shares purchased by the Investor in such VWAP Purchase, and the total aggregate VWAP Purchase Price to be paid by the Investor for the total VWAP Purchase Share Amount purchased by the Investor in such VWAP Purchase. Notwithstanding the foregoing, the Company shall not deliver any VWAP Purchase Notices to the Investor during the PEA Period, any Allowable Grace Period or any MPA Period.
Agent Purchases The Company acknowledges and agrees that Agent has informed the Company that the Agent may, to the extent permitted under the Securities Act and the Exchange Act, purchase and sell Common Stock for its own account while this Agreement is in effect, provided, that (i) no such purchase or sales shall take place while a Placement Notice is in effect (except to the extent the Agent may engage in sales of Placement Shares purchased or deemed purchased from the Company as a “riskless principal” or in a similar capacity) and (ii) the Company shall not be deemed to have authorized or consented to any such purchases or sales by the Agent.
Initial Purchase On the Initial Closing Date, subject to satisfaction of the conditions specified in Article VI and the First Step Initial Receivables Assignment (and, in any event, immediately prior to consummation of the related transactions contemplated by the Further Transfer and Servicing Agreements, if any), the Seller shall sell, transfer, assign and otherwise convey to XXXX, without recourse:
(i) all right, title and interest of the Seller in, to and under the Initial Receivables listed on the Schedule of Initial Receivables and all monies received thereon on and after the Initial Cutoff Date, exclusive of any amounts allocable to the premium for physical damage collateral protection insurance required by the Seller or the Servicer covering any related Financed Vehicle;
(ii) the interest of the Seller in the security interests in the Financed Vehicles granted by Obligors pursuant to the Initial Receivables and, to the extent permitted by law, any accessions thereto;
(iii) the interest of the Seller in any proceeds from claims on any physical damage, credit life, credit disability or other insurance policies covering the related Financed Vehicles or Obligors;
(iv) the interest of the Seller in any proceeds from recourse against Dealers on the Initial Receivables;
(v) all right, title and interest of the Seller in, to and under the First Step Initial Receivables Assignment;
(vi) the right to purchase Additional Receivables during the Revolving Period at a price equal to the Aggregate Additional Receivables Principal Balance on each applicable Distribution Date; and
(vii) all present and future claims, demands, causes and choses in action in respect of any or all of the foregoing described in clauses (i) through (vi) above and all payments on or under and all proceeds of every kind and nature whatsoever in respect of any or all the foregoing, including all proceeds of the conversion of any or all of the foregoing, voluntary or involuntary, into cash or other liquid property, all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance proceeds, investment property, payment intangibles, general intangibles, condemnation awards, rights to payment of any and every kind and other forms of obligations and receivables, instruments and other property which at any time constitute all or part of or are included in the proceeds of any of the foregoing. The property described in clauses (i) through (vii) above is referred to herein collectively as the “Initial Purchased Property.”
Initial Purchase Price (a) Prior to Closing, the Company shall prepare (and, if requested by Purchaser, in consultation with Purchaser), and at least four Business Days prior to the Closing Date, the Company shall deliver to Purchaser, a written statement (the “Closing Statement”) setting forth:
(i) the Company’s good faith estimate and supporting calculations of (I) the Cash Amount (the “Estimated Cash Amount”), (II) the Net Working Capital (the “Estimated Net Working Capital”), (III) the Indebtedness Amount (the “Estimated Indebtedness Amount”) and (IV) the Transaction Expenses Amount (the “Estimated Transaction Expenses Amount”);
(ii) payment instructions for the payment of the Closing Consideration;
(iii) a list of and, as applicable, payment instructions for the payment of, each of the Transaction Expenses included in the Estimated Transaction Expenses Amount; and
(iv) the calculation of the Initial Purchase Price and Closing Consideration derived therefrom.
(b) During the preparation of the Closing Statement (if requested by Purchaser) and after the delivery of the Closing Statement, Purchaser and its Representatives shall have a reasonable opportunity to review and to discuss with the Company and its Representatives (a) the Company’s and its Subsidiaries’ working papers and the working papers of the Company’s independent accountants, if any, relating to the preparation of the Closing Statement and the calculation of the Estimated Cash Amount, Estimated Net Working Capital, Estimated Indebtedness Amount and Estimated Transaction Expenses Amount and (b) the relevant books and records of the Company and its Subsidiaries relating to the Cash Amount, the Net Working Capital, the Indebtedness Amount or the Transaction Expenses Amount; and the Company and its Representatives shall reasonably assist Purchaser and its representatives in their review of the Closing Statement and the preparation thereof and reasonably cooperate with respect thereto. In the event Purchaser notifies the Company in writing prior to the Closing that it disputes any amount set forth in the Closing Statement, Purchaser and the Company shall cooperate in good faith to resolve any such dispute as promptly as practicable prior to the Closing Date. If, prior to the Closing, Purchaser and the Company agree in writing to any component on the Closing Statement, then such components of the Closing Statement shall be modified as so agreed. The Closing shall not be delayed if Purchaser and the Company are unable, after any such cooperation, to agree on all of the components of the Closing Statement and, except as otherwise agreed to by Purchaser and the Company in writing, the parties shall use the Closing Statement as delivered by the Company for purposes of determining the Closing Consideration (without limiting any of the provisions of this Agreement, including Article II).
(c) From 12:00 a.m. on the Closing Date and until the Closing, the Company shall not, and shall not permit any of its Subsidiaries to, make any dividend or distributions of Cash or incur any Indebtedness or Transaction Expenses (other than as a result of the Financing or as already fully reflected in the Closing Statement) or use any Cash to pay any Transaction Expenses or to repay any Indebtedness. If, as a result of a breach by the Company of any of its covenants contained in this Section 1.02(c), Cash, Transaction Expenses or Indebtedness shall have changed between 11:59 p.m. on the day immediately preceding the Closing Date and the time immediately preceding the Closing, then any such changes shall be included in the calculation of Cash Amount, Transaction Expenses Amount and/or Indebtedness Amount (as the case may be) for purposes of the Closing Statement.
(d) For purposes of this Agreement,
Purchases Without the prior written consent of Lender, no materials, machinery, equipment, fixtures or any other part of the Repairs or Capital Replacements will be purchased or installed under conditional sale contracts or lease agreements, or any other arrangement wherein title to such Repairs or Capital Replacements is retained or subjected to a purchase money security interest, or the right is reserved or accrues to anyone to remove or repossess any such Repairs or Capital Replacements, or to consider them as personal property.
Counterparty Share Repurchases Counterparty agrees not to repurchase, directly or indirectly, any Shares if, immediately following such purchase, the Outstanding Share Percentage would be equal to or greater than 4.5%. The “Outstanding Share Percentage” as of any day is the fraction (1) the numerator of which is the aggregate of the Number of Shares for this Transaction and the “Number of Shares” under each Additional Equity Derivative Transaction that is a share forward transaction and (2) the denominator of which is the number of Shares outstanding on such day.
Subsequent Purchases After the Closing Date, until the Purchase and Sale Termination Date, each Receivable and the Related Rights generated by each Originator shall be, and shall be deemed to have been, sold or contributed, as applicable, by such Originator to the Buyer immediately (and without further action) upon the creation of such Receivable.
Additional Purchases Stockholder agrees that any shares of capital stock of the Company that Stockholder purchases or with respect to which Stockholder otherwise acquires beneficial ownership after the execution of this Agreement and prior to the Expiration Date ("New Shares") shall be subject to the terms and conditions of this Agreement to the same extent as if they constituted Shares.
Offering by Initial Purchasers Each Initial Purchaser, severally and not jointly, represents and warrants to and agrees with the Issuer that:
(a) It is a qualified institutional buyer as defined in Rule 144A under the Act (a “QIB”), and an “accredited investor” within the meaning of Rule 501 of the Act and acknowledges that it is purchasing the Securities pursuant to a private sale exemption from registration under the Act.
(b) It has not offered or sold, and will not offer or sell, any Securities except (i) to those it reasonably believes to be qualified institutional buyers (as defined in Rule 144A under the Act) and that, in connection with each such sale, it has taken or will take reasonable steps to ensure that the purchaser of such Securities is aware that such sale is being made in reliance on Rule 144A or (ii) in accordance with the restrictions set forth in Exhibit A hereto. Each of the Initial Purchasers will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes the Pricing Disclosure Package, the Final Memorandum, any Issuer Written Communication or any such other material, in all cases at its own expense, except as provided in Section 5(m).
(c) Neither it nor any person acting on its behalf has made or will make offers or sales of the Securities in the United States by means of any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in the United States or in any manner involving a public offering within the meaning of Section 4(a) of the Act.
(d) Each Initial Purchaser acknowledges and agrees that the Issuer and, for the purposes of the opinions to be delivered to the Initial Purchasers pursuant to Section 6(a) through 6(d), (i) counsel for the Companies and counsel for Holdings and (ii) counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of such Initial Purchaser, and compliance of such Initial Purchaser with its agreements, contained in paragraphs 4(a) through (c), above, and such Initial Purchaser hereby consents to such reliance.
