CONSENT AND AMENDMENT TO NOTE PURCHASE AGREEMENTS
Exhibit
99.12
CONSENT
AND AMENDMENT TO NOTE PURCHASE AGREEMENTS
This
Consent
and Amendment to Note Purchase Agreements (this
“
Consent
and Amendment ”)
is
entered into as of November 30, 2007 by Acquicor
Management LLC
(“Company”),
Context
Opportunistic Master Fund, LP
(“COMF”)
and
Context
Advantage Master Fund, LP
(“CAMF”)
with
respect to the Note Purchase Agreements (the “ Note
Purchase Agreements ”)
dated
February 14, 2007 entered into between COMF and the Company (the “Company/COMF
Note Purchase Agreement”);
between Context Advantage Master Fund, LP and the Company (the “Company/CAMF
Note Purchase Agreement”);
between Xxxx X. Xxxxxx (“Xxxxxx”)
and
Context Advantage Master Fund, LP the “Kensey/CAMF
Note Purchase Agreement);
and
between Xxxxxx X. Xxxxx (“Xxxxx”)
and
Context Advantage Master Fund, LP the “Xxxxx/CAMF
Note Purchase Agreement).
The
parties agree as follows:
1.
Definitions.
Unless
otherwise specified herein, capitalized terms shall have the meanings specified
in the Note Purchase Agreements.
2.
Consent.
Section
3.7 of each of the Note Purchase Agreements provides that unless a Remedy Event
has occurred and is continuing, a sale of Pledged Stock is permitted,
provided
that (a)
any such sale complies with applicable securities laws, (b) the proceeds of
such
sale are applied to prepay or repay the Obligations in accordance with Section
2.3 of the Note Purchase Agreement, and (c) after any such sale, the Value
(as
measured on the date of such sale) of the Collateral, after giving effect to
any
prepayment or repayment of the Obligations, equals or exceeds the Initial
Placement Requirement. Recognizing that (assuming the payments provided for
in
this Consent and Amendment are made) there is no Remedy Event that has occurred
and is continuing, based upon the oral confirmation from the Chief Legal Officer
of Jazz Technologies, Inc. (“Jazz”) that such sale is in compliance with
applicable securities laws and subject to the terms and conditions of this
Consent and Amendment, COMF and CAMF hereby consent to the sale by Company
to
Jazz of the following Collateral Pledged Stock, effective immediately before
the
opening of the market on December 6, 2007:
|
·
|
Pledged
Stock sold to Jazz that constituted Collateral under the Company/CAMF
Note
Purchase Agreement: 497,967 Initial Pledged Shares and 751,437
Subsequently Purchased Shares
|
|
·
|
Pledged
Stock sold to Jazz that constituted Collateral under the Company/COMF
Note
Purchase Agreement: 227,336 Initial Pledged Shares and 343,053
Subsequently Purchased Shares
|
|
·
|
Pledged
Stock sold to Jazz that constituted Collateral under the Kensey/CAMF
Note
Purchase Agreement: 51,836 Subsequently Purchased
Shares
|
|
·
|
Pledged
Stock sold to Jazz that constituted Collateral under the Xxxxx/CAMF
Note
Purchase Agreement: 51,836 Subsequently Purchased
Shares
|
3.
Amendment
of Company/CAMF Note Purchase Agreement and Company/COMF Note Purchase
Agreement
Subject
to the December 6, 2007 payments provided for in this Agreement being made,
the
Company/CAMF Note Purchase Agreement and the Company/COMF Note Purchase
Agreement are hereby amended as follows:
(a)
The
definition of “Interest Rate” in Article 1 is modified to read in its entirety
as follows:
Interest
rate means the rate of 15% per annum from February 21, 2007 through November
30,
2007; the rate of 10% per annum from December 1, 2007 through May 25, 2008;
and
the rate of 8.5% per annum from May 26, 2008 through May 25, 2009.
(b)
The
definition of “Initial Placement Requirement” in Article 1 is modified to read
in its entirety as follows:
Initial
Placement Requirement” means,
(i) on any date from February 14, 2007 through December 5, 2007, for Collateral
consisting of AQR Shares, 200% of the aggregate principal amount of Notes
outstanding as of such date;
(ii) on
any date from December 6, 2007 through May 25, 2009, for Collateral consisting
of AQR Shares, 130% of
the
aggregate principal amount of Notes outstanding as of such date;
and
(iii) for any type of Collateral other than AQR Shares, the percentage
of the aggregate principal amount of Notes outstanding as of such date as
determined by the Buyer, from time to time, in its discretion.
(c)
CAMF
and the Company agree under the Company/CAMF Note Purchase Agreement, and COMF
and the Company agree under the Company/COMF Note Purchase Agreement, that
if
the Value of Pledged
Stock on any date falls below the Initial Placement Requirement then in effect,
Borrower will promptly notify Buyer in writing in the manner required by the
Company/CAMF
Note Purchase Agreement and the Company/COMF Note Purchase Agreement, as
applicable.
If the
Value of the Pledged Stock remains below the Initial Placement Requirement
then
in effect for a period of fifteen (15) consecutive trading days (regardless
of
whether such written notice has been delivered), and Borrower does not provide
sufficient additional Collateral so that the Value of the Collateral equals
or
exceeds the Initial Placement Requirement then in effect, Buyer may at its
option liquidate sufficient Collateral and apply the proceeds thereof (after
reasonable expenses incurred in connection therewith) to reduce the outstanding
Obligations so that the value of the remaining Collateral equals or exceeds
the
Initial Placement Requirement. Any such liquidation of Collateral shall be
made
in the manner contemplated by Section 8.2 of the Company/CAMF
Note Purchase Agreement and the Company/COMF Note Purchase Agreement, as if
a
Remedy Event had occurred and was then continuing as to the amount of Collateral
contemplated to be sold pursuant to this Section 3(c).
(d)
In
the event the Company prepays any principal under the Company/CAMF Note Purchase
Agreement or the Company/COMF Note Purchase Agreement on or after December
6,
2007, the applicable Buyer will credit against the Obligations (or refund to
the
Company) an amount equal to any unaccrued interest prepaid by Company pursuant
to Section 4 with respect to the principal amount prepaid (calculated on the
basis of a three hundred sixty-five (365) day year for the actual number of
days
by which such amount is prepaid), subject to offset for any other Obligations
then payable to the Buyer by the Borrower.
2
4.
Application of Proceeds.
The
Company, Kensey and Xxxxx will pay all of the proceeds of such sales to prepay
or repay the Obligations by wire transfer on December 6, 2007, with the proceeds
to be applied as follows:
(a)
Of
the total $4,058,511.43 in proceeds from such sales, $2,786,426.64 will be
paid
to CAMF, of which $192,075.35 represents accrued interest through November
30,
2007 under the Company/CAMF Note Purchase Agreement, the Kensey/CAMF Note
Purchase Agreement and the Xxxxx/CAMF Note Purchase Agreement, $292,408.87
represents prepaid interest from December 1, 2007 through May 25, 2009 on the
Company/CAMF Note Purchase Agreement, $414,967.34 represents payment of
principal under the Kensey/CAMF Note Purchase Agreement and Xxxxx/CAMF Note
Purchase Agreement, $3,432.82 represents reimbursement to CAMF of its attorneys’
fees incurred in connection with this Agreement, and $1,883,542.26 represents
payment of principal on the Company/CAMF Note Purchase Agreement that would
otherwise have been due on May 25, 2008, leaving a remaining balance of
$2,190,441.00 in principal under the Company/CAMF Note Purchase
Agreement.
(b)
The
remaining $1,272,084.79 of the $4,058,511.43 in proceeds from such sales will
be
paid to COMF, of which $87,687.98 represents accrued interest through November
30, 2007 on the Company/COMF Note Purchase Agreement, $133,493.15 represents
prepaid interest from December 1, 2007 through May 25, 2009 on the Company/CAMF
Note Purchase Agreement, $189,444.66 represents payment of principal under
the
Kensey/CAMF Note Purchase Agreement and Xxxxx/CAMF Note Purchase Agreement,
$1,567.18 represents reimbursement to COMF of its attorneys’ fees incurred in
connection with this Agreement, and $859,891.82 represents payment of principal
on the Company/COMF Note Purchase Agreement that would otherwise have been
due
on May 25, 2008, leaving a remaining balance of $1,000,000 in principal under
the COMF Note Purchase Agreement.
5.
Acknowledgement.
The
parties acknowledge that after such sale, the Value (as measured on the date
hereof) of the Collateral under the Company/CAMF Note Purchase Agreement and
the
Company/COMF Note Purchase Agreement, after giving effect to any prepayment
or
repayment of the Obligations, equals or exceeds the Initial Placement
Requirement in effect on and after December 6, 2007, in that (a) the remaining
Pledged Stock under the Company/CAMF Note Purchase Agreement, after giving
effect to such sale, consists of 1,615,288 shares of common stock of Jazz which
at the closing price of $2.08 on December 5, 2007 is valued at $3,359,799.04,
more than 1.3 times the remaining principal balance of $2,190,441.00 under
the
Company/CAMF Note Purchase Agreement; and (b) the remaining Pledged Stock under
the Company/COMF Note Purchase Agreement, after giving effect to such sale,
consists of 737,426 shares of common stock of Jazz which at the closing price
of
$2.08 on December 5, 2007 is valued at $1,533,846.08, more than 1.3 times the
remaining principal balance of $1,000,000 under the Company/COMF Note Purchase
Agreement.
3
6.
Release of Collateral.
(a)
The
Collateral sold to Jazz as set forth in Section 2 of this Consent and Amendment
shall be immediately released from the liens created by the Note Purchase
Agreements, and CAMF and COMF agree promptly to execute such documents and
take
such actions as shall be required to effect such release, and in any event
agrees to take such actions by no later than December 17, both with respect
to
the Collateral to be released under this Agreement and the Collateral released
under the Consent dated as of September 4, 2007.
(b)
The
parties acknowledge that after such sale and payments, all
the
Obligations under the Kensey/CAMF Note Agreement and the Xxxxx/CAMF Note
Agreement will been indefeasibly paid and performed in full. Accordingly, all
remaining Collateral under the Kensey/CAMF Note Agreement and the Xxxxx/CAMF
Note Agreement shall
be
promptly released from the liens created hereby, and the
Kensey/CAMF Note Agreement and the Xxxxx/CAMF Note Agreement
and all
obligations (other than those expressly stated to survive such
termination) of the Buyer and the Borrower thereunder shall terminate, all
without delivery of any instrument or performance of any act by any party.
The
respective Buyers under
the
Kensey/CAMF Note Agreement and the Xxxxx/CAMF Note Agreement
shall
deliver
to the Borrower any Collateral held by the Buyer thereunder, and execute and
deliver to the Borrower such documents as the Borrower
shall reasonably request to evidence such termination and the release of all
such liens.
7.
Miscellaneous.
7.1
Effect of Consent and Amendment. Except
as
specifically modified by this Consent and Amendment, the terms and conditions
of
the Note Purchase Agreements and the Notes shall remain unchanged and in full
force and effect.
7.2
Governing Law. THIS
CONSENT AND AMENDMENT IN ALL RESPECTS SHALL BE GOVERNED BY AND INTERPRETED
UNDER
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED WHOLLY WITHIN SUCH STATE WITHOUT REGARD TO ANY CONFLICT OF LAW
PROVISION THEREOF THAT MIGHT PREVENT THE OPERATION OF THIS SECTION
6.2.
7.3
Counterparts. This
Consent and Amendment may be executed in any number of counterparts and by
the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. Signature pages delivered by electronic
transmission (including pdf) shall have the same effect as the originally
executed signature page.
In
Witness Whereof ,
the
parties have executed this Consent
and Amendment as
of the
date first set forth above.
[signature
page follows]
4
Context
Opportunistic Master Fund, LP
By:
/s/
Xxxxx Xxxxxx
|
Name:
|
Xxxxx
Xxxxxx
|
| Title: |
Portfolio
Manager
|
|
Context
Capital Management, LLC
|
General
Partner
Context
Advantage Master Fund, LP
By:
/s/
Xxxxx Xxxxxx
| Name: |
Xxxxx
Xxxxxx
|
| Title: |
Portfolio
Manager
|
|
Context
Capital Management, LLC
|
General
Partner
By:
/s/
Xxxxxxx X. Xxxxxx
| Name: |
Xxxxxxx
X. Xxxxxx
|
| Title: |
Sole
Manager
|
/s/
Xxxx
X. Xxxxxx
Xxxx
X.
Xxxxxx
/s/
Xxxxxx X. Xxxxx
Xxxxxx
X.
Xxxxx
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