Common use of Exit Payments Clause in Contracts

Exit Payments. (a) Subject to Section 3, FWC shall pay to the Trustee, in the manner set forth in Section 2(b), (i) each of the amounts set forth in Schedule A (each a “Current Exit Payment” and collectively, the “Current Exit Payments”) on the date set forth opposite each Current Exit Payment and (ii) the amount designated in Schedule B as the Accreted Amount Exit Payment on the last date set forth in such Schedule (the “Accreted Amount Exit Payment”, and together with the Current Exit Payments and the payments referred to in Section 2(b), sometimes hereinafter referred to individually as an “Exit Payment” and collectively as the “Exit Payments”). Subject to Section 3, the obligation of FWC to make the Exit Payments shall be absolute, irrevocable and unconditional, and shall not be subject to any reduction, limitation, impairment or termination for any reason, including without limitation, any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity or unenforceability of such obligation or otherwise. (b) In the event that, prior to FWC having made all Exit Payments described in Section 2(a), all or any portion of the 1999C Bonds or 1999D Bonds are (with notice to FWC) either (i) called for special mandatory redemption pursuant to Section 4.08 of the Second Amended Indenture as a result of a Determination of Taxability (as such term is defined in the Second Amended Indenture, or (ii) called for optional redemption pursuant to Section 4.12 of the Second Amended Indenture, FWC shall make an Exit Payment to the Trustee, on or prior to the applicable redemption date, in an amount equal to the redemption price for such Bonds. Upon the making of any such Exit Payment, FWC’s obligation, if any, to make further Exit Payments shall be adjusted pursuant to Section 2(e). (c) Each Exit Payment made by FWC to the Trustee shall be made in immediately available funds on the date such Exit Payment is due, whether by acceleration or otherwise (each, an “Exit Payment Due Date”). (d) Without limiting the foregoing, (i) any amendment to the Second Amended Indenture made in accordance with terms thereof, any amendment to the Facility Lease Agreement, any waiver of or consent to or departure from, or failure to exercise or a delay in the exercise of any right, remedy, power or privilege under or in respect of the Facility Lease Agreement and/or the Second Amended Indenture or any document or instrument executed or delivered in connection therewith, including, without limitation, any modification, extension or postponement or acceleration of times for payment or performance, shall not in any way affect the obligations of FWC to make Exit Payments under this Agreement or the timing of such payments, and (ii) the obligations of FWC to make Exit Payments under this Agreement shall not be subject to acceleration for any reason except as set forth in Sections 2(g) and 2(h) hereof. (e) FWC’s obligation to make Exit Payments shall be adjusted as follows: (i) On or prior to any Exit Payment Due Date, the Trustee shall notify FWC of any amounts (an “Exit Payment Credit Amount”) held in any fund or account created pursuant to the Second Amended Indenture that pursuant to the terms thereof are available to be applied on such Exit Payment Due Date (without giving effect to the Exit Payment then due) (x) in the case of Current Exit Payments, to the payment of principal, interest or redemption price (as applicable) on the 1999C Bonds and (y) in the case of the Accreted Amount Exit Payment, to the payment of principal, interest or redemption price (as applicable) on the 1999D Bonds, and the amount of such Exit Payment due on such Exit Payment Due Date shall be reduced by such Exit Payment Credit Amount. (ii) In the event that there shall be any reduction in the aggregate outstanding principal amount of any 1999C and D Bonds as a result of any partial redemption or defeasance of such 1999C and D Bonds prior to their maturity, other than due to any sinking fund redemption, appropriate corresponding adjustments shall be made to the principal components on which the Exit Payments are based in their order of maturity, the Exit Payment(s) related thereto shall be recalculated and Schedule A and B, as appropriate, shall be amended. (iii) FWC shall have the right at any time, at its option and in its sole discretion, to irrevocably deposit with the Trustee all, or any portion of, any Litigation Proceeds allocable to FWC pursuant to Section 2.3(F) or Section 2.3(G) of the Irrevocable Assignment and Allocation Agreement (the “FWC Litigation Deposit”), in which event (A) the principal components on which the Current Exit Payments are based shall be reduced, in their order of maturity, by the amount of the FWC Litigation Deposit, (B) the Current Exit Payment(s) related thereto shall be recalculated to reflect the reduction of the principal components and corresponding reduction of the interest components, and (C) Schedule A shall be amended. (f) Each of the following shall be an “FWC Default” hereunder: (i) FWC shall have become insolvent, or generally does not pay its debts as they become due, or admits in writing its inability to pay its debts, or makes a deed of trust or assignment for the benefit of its creditors; or (A) Unless the petition instituting the proceedings is timely contested and the proceedings are dismissed or effectively stayed within sixty (60) days from the commencement thereof, insolvency, receivership, liquidation, reorganization or similar proceedings have been instituted against FWC or (B) FWC shall institute any such proceeding; or (iii) FWC shall fail to make any Exit Payment when due whether by acceleration or otherwise; or (iv) Any acceleration of any Senior Debt. (g) Upon (A) the occurrence of an FWC Default under clause (ii) of Section 2(f) there shall be an immediate and automatic acceleration of the Current Exit Payments without notice or demand of any kind, which notice is hereby waived, or (B) the occurrence of any other FWC Default, the Trustee, may but shall not be obligated to, declare by written notice to FWC, an acceleration of the Current Exit Payments; in either of which event of acceleration an amount equal to the sum of (x) the sum of the remaining unpaid Current Exit Payment Principal Components plus (y) interest on the principal sum in clause (x) computed at the rate of interest set forth on Schedule A from the date of the last payment of a Current Exit Payment Interest Component to and including the date of such acceleration, shall be immediately due and payable. (h) Upon (A) the occurrence of an FWC Default under clause (ii) of Section 2(f) there shall be an immediate and automatic acceleration of the Accreted Amount Exit Payment without notice or demand of any kind, which notice is hereby waived, or (B) the occurrence of any other FWC Default, the Trustee may, but shall not be obligated to, declare by written notice to FWC, an acceleration of the Accreted Amount Exit Payment; in either of which event of acceleration an amount equal to the Accreted Amount, calculated in the manner set forth on Exhibit B, to and including the date of such acceleration, shall be immediately due and payable. (i) No delay on the part of the Trustee in the exercise of any right or remedy hereunder shall operate as a waiver thereof, and no single or partial exercise by the Trustee of any right or remedy hereunder shall preclude any further exercise thereof; nor shall any modification or waiver of any of the provisions of this Agreement be binding upon either Party, except as expressly set forth in a writing duly signed by both Parties. The failure of the Trustee at any time or times hereafter to require strict performance by FWC of any of the provisions, warranties, terms or conditions contained in this Agreement or any agreement, instrument or document now or at any time or times hereafter executed by FWC with respect to the obligations of FWC contained in this Agreement shall not result in the waiver of or affect or diminish any right of the Trustee at any time or times hereafter to demand strict performance of such obligations and such right shall not be deemed to have been waived by any act or knowledge of the Trustee, its partners, agents, officers or employees, unless such waiver is contained in an instrument in writing signed by an officer or agent of the Trustee and directed to FWC specifying such waiver. No waiver by the Trustee of any default or failure to pay or perform when due all or any portion of the obligations of FWC contained in this Agreement shall operate as a waiver of any other default or failure or the same default or failure on a future occasion.

Exit Payments. (a) Subject to Section 3, FWC shall pay to the Trustee, in the manner set forth in Section 2(b), (i) each Upon the earliest to occur of (i) the Deleveraging Event, (ii) any refinancing, in whole or in part, including pursuant to a Refinancing Amendment or with the proceeds of Credit Agreement Refinancing Indebtedness, of the amounts set forth in Schedule A Revolving Credit Commitments and (each a “Current Exit Payment” iii) the date of an acceleration of, or the occurrence of an event which gives right to the right of the Revolving Lenders to accelerate the Revolving Credit Loans (and collectivelytermination of the Revolving Commitments) (any of the foregoing, the “Current Revolving Exit PaymentsPayment Trigger”) ), the Lead Borrower shall pay, or cause to be paid, to each Revolving Credit Lender with a Revolving Credit Commitment on the date set forth opposite of the occurrence of the Revolving Exit Payment Trigger, the Revolving Facility Exit Payment. The Revolving Facility Exit Payment shall be payable on a pro rata basis to the Revolving Credit Lenders in accordance with their percentage of the Revolving Credit Commitments as of the date of such payment. (ii) Upon the earliest to occur of (i) the Deleveraging Event, (ii) a Repricing Event, (iii) any refinancing, in whole or in part, including pursuant to a Refinancing Amendment or with the proceeds of Credit Agreement Refinancing Indebtedness, of the Term Loans or (iv) the date of an acceleration of, or the occurrence of an event which gives rise to the right of the Term Lenders to accelerate the Term Loans (any of the foregoing, the “Term Loan Exit Payment Trigger”), the applicable Borrower shall pay, or cause to be paid, (x) to each Current Initial Term B Lender with an Initial Term B Loan on the date of the occurrence of a Term Loan Exit Payment Trigger, the Initial Term B Loan Exit Payment and (iiy) to each Delayed Draw Term Lender with a Delayed Draw Term Loan on the amount designated in Schedule B as date of the Accreted Amount occurrence of the Term Loan Exit Payment on Trigger, the last date set forth in such Schedule (the “Accreted Amount Delayed Draw Term Loan Exit Payment”, and together with the Current . The Initial Term B Loan Exit Payments Payment and the payments referred Delayed Draw Term Loan Exit Payment shall each be payable on a pro rata basis to in Section 2(b)the Initial Term B Lenders and Delayed Draw Term Lenders, sometimes hereinafter referred to individually respectively, as an “Exit Payment” and collectively as of the “Exit Payments”)date of such payment. Subject to Section 3, For the obligation avoidance of FWC to make the Exit Payments shall be absolute, irrevocable and unconditional, and shall not be subject to any reduction, limitation, impairment or termination for any reason, including without limitationdoubt, any claim of waiver, release, surrender, alteration or compromise, Initial Term B Loan Exit Payment and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity or unenforceability of such obligation or otherwise. (b) In the event that, prior to FWC having made all Delayed Draw Term Loan Exit Payments described in Section 2(a), all or any portion of the 1999C Bonds or 1999D Bonds are (with notice to FWC) either (i) called for special mandatory redemption pursuant to Section 4.08 of the Second Amended Indenture Payment payable as a result of a Determination Repricing Event shall be in addition to any prepayment premium set forth in Section 2.05(a)(ii). Notwithstanding the foregoing, in connection with a request for a consent, waiver or amendment of Taxability (as such term is defined the type set forth in Section 3.07(d), the Second Amended Indentureapplicable Borrower shall pay, or (ii) called for optional redemption pursuant cause to Section 4.12 of the Second Amended Indenturebe paid, FWC shall make an Exit Payment to the Trustee, on or prior to the applicable redemption date, in an amount equal to the redemption price for such Bonds. Upon the making of any such each Lender entitled to an Exit Payment, FWC’s obligationincluding each Non-Consenting Lender, if any, to make further Exit Payments shall be adjusted pursuant to Section 2(e). (c) Each Exit Payment made by FWC to the Trustee shall be made in immediately available funds on the date such Exit Payment is due, whether by acceleration or otherwise (each, an “Exit Payment Due Date”). (d) Without limiting the foregoing, (i) any amendment to the Second Amended Indenture made in accordance with terms thereof, any amendment to the Facility Lease Agreement, any waiver of or consent to or departure from, or failure to exercise or a delay in the exercise of any right, remedy, power or privilege under or in respect of the Facility Lease Agreement and/or the Second Amended Indenture or any document or instrument executed or delivered in connection therewith, including, without limitation, any modification, extension or postponement or acceleration of times for payment or performance, shall not in any way affect the obligations of FWC to make Exit Payments under this Agreement or the timing of such payments, and (ii) the obligations of FWC to make Exit Payments under this Agreement shall not be subject to acceleration for any reason except as set forth in Sections 2(g) and 2(h) hereof. (e) FWC’s obligation to make Exit Payments shall be adjusted as follows: (i) On or prior to any Exit Payment Due Date, the Trustee shall notify FWC of any amounts (an “Exit Payment Credit Amount”) held in any fund or account created pursuant to the Second Amended Indenture that pursuant to the terms thereof are available to be applied on such Exit Payment Due Date (without giving effect to the Exit Payment then due) (x) in the case of Current Exit Payments, to the payment of principal, interest or redemption price (as applicable) on the 1999C Bonds and (y) in the case of the Accreted Amount Exit Payment, to the payment of principal, interest or redemption price (as applicable) on the 1999D Bonds, and the amount of such Exit Payment due on such Exit Payment Due Date shall be reduced by such Exit Payment Credit Amount. (ii) In the event that there shall be any reduction in the aggregate outstanding principal amount of any 1999C and D Bonds as a result of any partial redemption or defeasance of such 1999C and D Bonds prior to their maturity, other than due to any sinking fund redemption, appropriate corresponding adjustments shall be made to the principal components on which the Exit Payments are based in their order of maturity, the Exit Payment(s) related thereto shall be recalculated and Schedule A and B, as appropriate, shall be amended. (iii) FWC shall have the right at any time, at its option and in its sole discretion, to irrevocably deposit with the Trustee all, or any portion of, any Litigation Proceeds allocable to FWC pursuant to Section 2.3(F) or Section 2.3(G) of the Irrevocable Assignment and Allocation Agreement (the “FWC Litigation Deposit”), in which event (A) the principal components on which the Current Exit Payments are based shall be reduced, in their order of maturity, by the amount of the FWC Litigation Deposit, (B) the Current Exit Payment(s) related thereto shall be recalculated to reflect the reduction of the principal components and corresponding reduction of the interest components, and (C) Schedule A shall be amended. (f) Each of the following shall be an “FWC Default” hereunder: (i) FWC shall have become insolvent, or generally does not pay its debts as they become due, or admits in writing its inability to pay its debts, or makes a deed of trust or assignment for the benefit of its creditors; or (A) Unless the petition instituting the proceedings is timely contested and the proceedings are dismissed or effectively stayed within sixty (60) days from the commencement thereof, insolvency, receivership, liquidation, reorganization or similar proceedings have been instituted against FWC or (B) FWC shall institute any such proceeding; or (iii) FWC shall fail to make any Exit Payment when due whether by acceleration or otherwise; or (iv) Any acceleration of any Senior Debt. (g) Upon (A) the occurrence of an FWC Default under clause (ii) of Section 2(f) there shall be an immediate and automatic acceleration of the Current Exit Payments without notice or demand of any kind, which notice is hereby waived, or (B) the occurrence of any other FWC Default, the Trustee, may but shall not be obligated to, declare by written notice to FWC, an acceleration of the Current Exit Payments; in either of which event of acceleration an amount equal to the sum of (x) the sum its pro rata portion of the remaining unpaid Current Exit Payment Principal Components plus (y) interest on the principal sum in clause (x) computed at the rate Payments as of interest set forth on Schedule A from the date of the last payment of a Current Exit Payment Interest Component to and including the date of such accelerationconsent, shall be immediately due and payablewaiver or amendment. (h) Upon (A) the occurrence of an FWC Default under clause (ii) of Section 2(f) there shall be an immediate and automatic acceleration of the Accreted Amount Exit Payment without notice or demand of any kind, which notice is hereby waived, or (B) the occurrence of any other FWC Default, the Trustee may, but shall not be obligated to, declare by written notice to FWC, an acceleration of the Accreted Amount Exit Payment; in either of which event of acceleration an amount equal to the Accreted Amount, calculated in the manner set forth on Exhibit B, to and including the date of such acceleration, shall be immediately due and payable. (i) No delay on the part of the Trustee in the exercise of any right or remedy hereunder shall operate as a waiver thereof, and no single or partial exercise by the Trustee of any right or remedy hereunder shall preclude any further exercise thereof; nor shall any modification or waiver of any of the provisions of this Agreement be binding upon either Party, except as expressly set forth in a writing duly signed by both Parties. The failure of the Trustee at any time or times hereafter to require strict performance by FWC of any of the provisions, warranties, terms or conditions contained in this Agreement or any agreement, instrument or document now or at any time or times hereafter executed by FWC with respect to the obligations of FWC contained in this Agreement shall not result in the waiver of or affect or diminish any right of the Trustee at any time or times hereafter to demand strict performance of such obligations and such right shall not be deemed to have been waived by any act or knowledge of the Trustee, its partners, agents, officers or employees, unless such waiver is contained in an instrument in writing signed by an officer or agent of the Trustee and directed to FWC specifying such waiver. No waiver by the Trustee of any default or failure to pay or perform when due all or any portion of the obligations of FWC contained in this Agreement shall operate as a waiver of any other default or failure or the same default or failure on a future occasion.