GTAT Corp undertook to manufacture the Goods; and (iii) Apple agreed to make certain prepayments to GTAT Corp. to fund the purchase of the ASF Furnaces and other equipment used to make the Goods;
GTAT Corp may obtain a debtor-in-possession financing agreement subject to approval of the Bankruptcy Court (the “DIP Facility”). Apple consents to the priming of its security interest in the Mesa ASF Furnaces in an amount equal to $150,000,000 principal amount plus interest, fees and costs in connection with (i) the DIP Facility or any subsequent post-petition financing in the Chapter 11 Cases that refinances the DIP Facility, (ii) any exit financing (or any refinancing thereof) in the Chapter 11 Cases upon consummation of Chapter 11 plans for the GTAT Parties that refinances the DIP Facility, and (iii) any financing obtained by any of the GTAT Parties at any time prior to the Maturity Date (any of items (i), (ii) and (iii), a “Priming Financing”). For the avoidance of doubt, Apple’s agreement to be subordinated to up to $150,000,000 of Priming Financing shall apply to any refinancing, whether or not the amount being refinanced is less than $150,000,000. The agreement of Apple to be subordinated as provided herein shall be conditioned on the effectiveness of this Settlement Agreement at the time such DIP Facility is entered into and the GTAT Parties not being in default under this Settlement Agreement at the time the Priming Financing is entered into and on the continued agreement of lenders under the Priming Financing to permit, prior to a continuing event of default and acceleration and acceleration and exercise of remedies by or on behalf of the lenders under the Priming Financing, the payment of proceeds of transfer to Apple as provided in Section 2.
GTAT Corp shall immediately discontinue the development of any and all annealing furnaces for Apple, with no further obligation or liability to Apple or GTAT Corp. with respect thereto. Any such annealing furnaces remaining in possession of the GTAT Parties shall belong solely to such GTAT Parties to be used or disposed of in such GTAT Parties’ sole discretion. Any annealing furnaces and associated components that are not in the possession of the GTAT Parties shall belong solely to the Apple Parties to be used or disposed of in such Apple Parties’ sole discretion.
GTAT Corp and GT Hong Kong shall each remain fully responsible for paying their respective direct and ordinary administrative costs incurred in their chapter 11 cases; and (ii) following emergence from chapter 00, XXXX Xxxx. xxx XX Xxxx Xxxx shall each remain fully responsible for paying their respective direct and ordinary expenses.
GTAT Corp. ASF Furnaces. With respect to Mesa ASF Furnaces sold by GT Hong Kong to Customers which Mesa ASF Furnaces were originally GTAT Corp. ASF Furnaces, GTAT Corp. shall indemnify, defend, and hold GT Hong Kong harmless from and against any and all claims, damages, liabilities, and losses (including reasonable attorney’s fees) incurred or suffered by GT Hong Kong related to any claim asserted by a Customer against GT Hong Kong for personal injury or property damage solely to the extent caused by the gross negligence or willful misconduct of GTAT Corp. with respect to such GTAT Corp.
GTAT Corp. ASF Furnaces. With respect to Mesa ASF Furnaces sold by GT Hong Kong to Customers which Mesa ASF Furnaces were originally GTAT Corp. ASF Furnaces, GTAT Corp. shall indemnify, defend, and hold GT Hong Kong harmless from and against any and all claims, damages, liabilities, and losses (including reasonable attorney’s fees) incurred or suffered by GT Hong Kong related to any claim asserted by a Customer against GT Hong Kong for personal injury or property damage solely to the extent caused by the gross negligence or willful misconduct of GTAT Corp. with respect to such GTAT Corp. ASF Furnaces. Notwithstanding Section 2.7 hereof, the foregoing indemnity shall not cover any claims, damages, liabilities, and losses incurred or suffered by GT Hong Kong related to any claim asserted by a Customer against GT Hong Kong for breach of warranty with respect to such GTAT Corp. ASF Furnaces, except (i) in the case of gross negligence or willful misconduct by GTAT Corp. and (ii) [* * *].
