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Contract analysis / dip-payoff-letter-lien-release.docx
dip-payoff-letter-lien-release.docx
1024-00001 · 18 clauses
High · 4 Medium · 2 Standard · 10
1. Introduction and Purpose Standard
⚑ Commercial term
1. Introduction and Purpose Calderwood & Harkness LLP ("Calderwood & Harkness" or "we") represents Driftwood Absolute Return Fund Ltd. ("Driftwood" or the "DIP Lender"), a Cayman Islands exempted company with its principal office located at 280 Park Avenue, 38th Floor, New York, NY 10017, and its investment manager, Driftwood Capital Advisors LLC, a Delaware limited liability company with its principal office at the
2. Payoff Amount High
⚑ Non-compete / exclusivity restraint
2. Payoff Amount 2.1 Total Payoff Amount as of February 16, 2024 The total payoff amount (the "Payoff Amount") required to satisfy all Obligations under the DIP Credit Agreement in full as of February 16, 2024 (the "Payoff Date") is set forth in Section 2.2 below. The Payoff Amount represents the aggregate amount that must be received by the DIP Lender in order to fully discharge and satisfy all Obligations of the Bo
3. Source of Payoff Funds Standard
⚑ Commercial term
3. Source of Payoff Funds The Debtors have represented to the DIP Lender and to Calderwood & Harkness LLP that the Payoff Amount will be funded from the following sources: (a) Proceeds of a new $95,000,000.00 exit credit facility (the "Exit Facility") to be provided by Thornbury Capital Markets LLC pursuant to a Credit Agreement to be entered into on or about the Payoff Date in connection with the Plan Effective Date
4. Wire Instructions Standard
⚑ Commercial term
4. Wire Instructions All payments of the Payoff Amount must be made by wire transfer of immediately available funds to the account designated below: Bank Name: Greaves Bancorp ABA Routing Number: 021000021 Account Name: Driftwood Absolute Return Fund Ltd. Account Number: 8834-7291-006 Reference: DIP Payoff — Cascabel Financial Holdings, Inc. — Case No. 23-11487 (KFM) Attention: Marcus Ellison, Co-Founder & CIO, and P
5. Authorization for Release of DIP Liens and Superpriority Claims Medium
⚑ Assignment / subcontracting
5. Authorization for Release of DIP Liens and Superpriority Claims 5.1 Conditional Authorization Upon irrevocable receipt of the full Payoff Amount in immediately available funds in the account designated in Section 4 hereof and in Exhibit A hereto, as confirmed by written notice from Calderwood & Harkness LLP or Driftwood (such confirmation, the "Payoff Confirmation"), Driftwood hereby irrevocably authorizes each of
6. Reservation of Rights High
⚑ Indemnity / guarantee obligation
6. Reservation of Rights Except as expressly set forth in this Payoff Letter, Driftwood hereby expressly reserves all of its rights, remedies, claims, and defenses under the DIP Credit Agreement, the Interim DIP Order, the Final DIP Order, the Adequate Protection Stipulation (as defined below), the Confirmation Order, the Plan, and all applicable law, whether arising in equity, at law, or under the Bankruptcy Code. W
7. Adequate Protection Obligations — Confirmation of Satisfaction High
⚑ Non-compete / exclusivity restraint
7. Adequate Protection Obligations — Confirmation of Satisfaction This Section 7 is provided for informational purposes and for the avoidance of doubt. Reference is made to that certain Stipulation Among the Debtors, Driftwood Absolute Return Fund Ltd., Velthorn National Bank, N.A., and Pinnacle Credit Partners Fund II, LP Regarding Adequate Protection (D.I. 189), filed with the Court on October 9, 2023 (the "Adequat
8. No Waiver Medium
⚑ Forum / governing law
8. No Waiver Nothing contained in this Payoff Letter shall be deemed a waiver or modification of any provision of the DIP Credit Agreement, the DIP Orders, or any related DIP Loan Document, or of any right or remedy of the DIP Lender arising thereunder or under applicable law. The delivery of this Payoff Letter, and the authorization for release of Liens set forth herein, do not and shall not create any obligation on
9. Governing Law High
⚑ Non-compete / exclusivity restraint
9. Governing Law This Payoff Letter shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict-of-laws principles that would require or permit the application of the laws of any other jurisdiction, consistent with Section 11.14 of the DIP Credit Agreement. To the extent not preempted by federal law, the internal laws of the State of New York shall govern all qu
10. Counterparts and Delivery Standard
⚑ Commercial term
10. Counterparts and Delivery This Payoff Letter may be executed and delivered in one or more counterparts, each of which when so executed and delivered shall be deemed to be an original, and all of which, when taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Payoff Letter by facsimile transmission or by electronic transmission in portable d
1. Colette Whitman, Esq.
1. Colette Whitman, Esq. Calderwood & Harkness LLP 599 Lexington Avenue New York, NY 10022 Telephone: (212) 848-6142 Email: colette.whitman@calderwoodharkness.com
2. Marcus Ellison, Co-Founder & Chief Investment Officer
2. Marcus Ellison, Co-Founder & Chief Investment Officer Driftwood Capital Advisors LLC 280 Park Avenue, 38th Floor New York, NY 10017 Telephone: (212) 756-8801 Email: mellison@driftwoodcap.com
3. Priya Venkatesh, Co-Founder & Chief Operating Officer Standard
⚑ Commercial term
3. Priya Venkatesh, Co-Founder & Chief Operating Officer Driftwood Capital Advisors LLC 280 Park Avenue, 38th Floor New York, NY 10017 Telephone: (212) 756-8803 Email: pvenkatesh@driftwoodcap.com The DIP Lender shall endeavor to deliver the Payoff Confirmation promptly upon verification that the full Payoff Amount has been irrevocably received in immediately available funds in the account designated above. EXHIBIT B
II. Accrued and Unpaid Interest Standard
⚑ Commercial term
II. Accrued and Unpaid Interest Applicable Rate: 13.00% per annum (Adjusted Term SOFR + 900 bps; SOFR floor of 4.00%; minimum all-in rate of 13.00%) Day-Count Convention: Actual/365 Note: The quarterly compounding adjustment reflects the capitalization of accrued interest at the end of the quarterly interest periods ending December 15, 2023, and the pro rata compounding through the Payoff Date, as provided in Section
IV. Commitment Fee (Previously Paid) Standard
⚑ Commercial term
IV. Commitment Fee (Previously Paid)
V. Reimbursable Expenses and Professional Fees Standard
⚑ Commercial term
V. Reimbursable Expenses and Professional Fees
VI. Grand Total Payoff Amount Standard
⚑ Commercial term
VI. Grand Total Payoff Amount The Grand Total Estimated Payoff Amount is subject to adjustment based on (i) the actual date and time of receipt of good funds, (ii) final reconciliation of reimbursable expenses, and (iii) delivery of final invoices for professional fees. The Debtors remain obligated to pay any deficiency in reimbursable expenses and professional fees following the Payoff Date.
VII. Per Diem Interest (if payment is received after 2:00 p.m. ET on February 16, 2024) Standard
⚑ Commercial term
VII. Per Diem Interest (if payment is received after 2:00 p.m. ET on February 16, 2024) The Default Rate per diem is set forth for reference only. The Default Rate applies only upon the occurrence and during the continuance of an Event of Default under the DIP Credit Agreement. — End of Exhibit B — Component | Amount Principal — New Money DIP Tranche | $43,000,000.00 Principal — Roll-Up Tranche | $32,000,000.00 Total