Common use of Application of Certain Payments and Proceeds Clause in Contracts

Application of Certain Payments and Proceeds. #4842-1976-9300 #4848-6974-4858 (a) All payments and other amounts received by the Administrative Agent or any Lender through the exercise of remedies hereunder or under the other Loan Documents from any Credit Party and all proceeds received by the Administrative Agent in respect of any sale of, collection from, or other realization upon all or any part of the Collateral pledged by the Credit Parties shall, unless otherwise required by applicable law, be applied as follows: (i) first, to the payment of that portion of the Obligations constituting fees, indemnities and expenses and other amounts (including attorneys’ fees and amounts due under Article III) payable to the Administrative Agent in its capacity as such; (ii) second, to the payment of that portion of the Obligations constituting fees, indemnities and expenses (including attorneys’ fees and amounts due under Article III) payable to each Lender, ratably among them in proportion to the aggregate of all such amounts; (iii) third, to the payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans, ratably among the Lenders in proportion to the aggregate of all such amounts; (iv) fourth, pro rata to the payment of that portion of the Obligations constituting unpaid principal of the Loans ratably among the Lenders in proportion to the aggregate of all such amounts; (v) fifth, to the payment of all other Obligations of the Credit Parties owing under or in respect of the Loan Documents that are then due and payable to the Secured Creditors, ratably based upon the respective aggregate amounts of all such Obligations owing to them on such date; and (vi) finally, any remaining surplus after all of the Obligations have been paid in full, unless required to be distributed pursuant to Section 4.1 of the Priming Facility Intercreditor Agreement, to the Parent Guarantor or to whomsoever shall be lawfully entitled thereto. It is understood and agreed that if a Triggering Event occurs, including as a result of the occurrence of an Event of Default, the Make-Whole Premium determined as of the date of such Triggering Event will also be due and payable and will be treated and deemed as though the Term Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein (subject to the Make-Whole Premium Exceptions) in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s loss as a result thereof. Any Make-Whole Premium payable pursuant to Section 2.13(g) shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Triggering Event, and the Borrower agrees that it is reasonable under the circumstances currently existing. The Make-Whole Premium, if any, shall also be payable in the event the Obligations (and/or this Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER HEREBY EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING MAKE-WHOLE PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION, EXCEPT AS A RESULT OF A MAKE-WHOLE PREMIUM EXCEPTION. The Borrower expressly agrees that (A) the Make-Whole Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the #4842-1976-9300 #4848-6974-4858 Make-Whole Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Borrower giving specific consideration in this transaction for such agreement to pay the Make-Whole Premium, (D) the Borrower shall be estopped hereafter from claiming differently than as agreed to in this paragraph, (E) its agreement to pay the Make-Whole Premium is a material inducement to the Lenders, (F) the Make-Whole Premium represents a good faith, reasonable estimate of liquidated damages (including without limitation a calculation of the lost profits or other damages, and are a proportionate quantification of the actual loss of the anticipated stream of interest payments upon an early prepayment or acceleration of the Term Loans) of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Triggering Event for various reasons (including, without limitation, because such damages would depend on, among other things, (1) when the Lenders might otherwise be repaid and (2) future changes in interest rates which are not readily ascertainable on the Closing Date), (G) to the extent it becomes due and payable in accordance with the terms of this Agreement, the Make-Whole Premium represents additional consideration for providing the Term Loans, and (H) the Make-Whole Premium is not a penalty to punish the Borrower for their early prepayment of the Term Loans or for the occurrence of any Event of Default or acceleration. It is expressly acknowledged and agreed that the Make-Whole Premium for purposes of this Agreement and the foregoing paragraph includes the premium set forth in clause (b) of the definition of “Make-Whole Premium”.

Application of Certain Payments and Proceeds. #4842-1976-9300 #4848-6974-4858 (a) All payments and other amounts received by the Administrative Agent or any Lender through the exercise of remedies hereunder or under the other Loan Documents from any Credit Party and all proceeds received by the Administrative Agent in respect of any sale of, collection from, or other realization upon all or any part of the Collateral pledged by the Credit Parties shall, unless otherwise required by applicable law, be applied as follows: : (i) first, to the payment of that portion of the Obligations constituting fees, indemnities and expenses and other amounts (including attorneys’ fees and amounts due under Article III) payable to the Administrative Agent in its capacity as such; ; (ii) second, to the payment of that portion of the Obligations constituting fees, indemnities and expenses (including attorneys’ fees and amounts due under Article III) payable to each Lender, ratably among them in proportion to the aggregate of all such amounts; ; (iii) third, to the payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans, ratably among the Lenders in proportion to the aggregate of all such amounts; ; (iv) fourth, pro rata to the payment of that portion of the Obligations constituting unpaid principal of the Loans ratably among the Lenders in proportion to the aggregate of all such amounts; ; (v) fifth, to the payment of all other Obligations of the Credit Parties owing under or in respect of the Loan Documents that are then due and payable to the Secured Creditors, ratably -115- based upon the respective aggregate amounts of all such Obligations owing to them on such date; and and (vi) finally, any remaining surplus after all of the Obligations have been paid in full, unless required to be distributed pursuant to Section 4.1 of the Priming Facility Intercreditor Agreement, to the Parent Guarantor or to whomsoever shall be lawfully entitled thereto. It is understood and agreed that if a Triggering Event occurs, including as a result of the occurrence of an Event of Default, the Make-Whole Premium determined as of the date of such Triggering Event will also be due and payable and will be treated and deemed as though the Term Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein (subject to the Make-Whole Premium Exceptions) in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s loss as a result thereof. Any Make-Whole Premium payable pursuant to Section 2.13(g) shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Triggering Event, and the Borrower agrees that it is reasonable under the circumstances currently existing. The Make-Whole Premium, if any, shall also be payable in the event the Obligations (and/or this Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER HEREBY EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING MAKE-WHOLE PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION, EXCEPT AS A RESULT OF A MAKE-WHOLE PREMIUM EXCEPTION. The Borrower expressly agrees that (A) the Make-Whole Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the #4842-1976-9300 #4848-6974-4858 Make-Whole Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Borrower giving specific consideration in this transaction for such agreement to pay the Make-Whole Premium, (D) the Borrower shall be estopped hereafter from claiming differently than as agreed to in this paragraph, (E) its agreement to pay the Make-Whole Premium is a material inducement to the Lenders, (F) the Make-Whole Premium represents a good faith, reasonable estimate of liquidated damages (including without limitation a calculation of the lost profits or other damages, and are a proportionate quantification of the actual loss of the anticipated stream of interest payments upon an early prepayment or acceleration of the Term Loans) of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Triggering Event for various reasons (including, without limitation, because such damages would depend on, among other things, (1) when the Lenders might otherwise be repaid and (2) future changes in interest rates which are not readily ascertainable on the Closing Date), (G) to the extent it becomes due and payable in accordance with the terms of this Agreement, the Make-Whole Premium represents additional consideration for providing the Term Loans, and (H) the Make-Whole Premium is not a penalty to punish the Borrower for their early prepayment of the Term Loans or for the occurrence of any Event of Default or acceleration. It is expressly acknowledged and agreed that the Make-Whole Premium for purposes of this Agreement and the foregoing paragraph includes the premium set forth in clause (b) of the definition of “Make-Whole Premium”.

Application of Certain Payments and Proceeds. #4842-1976-9300 #4848-6974-4858 (a) All payments and other amounts received by the Administrative Agent or any Lender through the exercise of remedies hereunder or under the other Loan Documents from any Credit Party and all proceeds received by the Administrative Agent in respect of any sale of, collection from, or other realization upon all or any part of the Collateral pledged by the Credit Parties shall, unless otherwise required by applicable law, be applied as follows: (i) first, to the payment of that portion of the Obligations constituting fees, indemnities and expenses and other amounts (including attorneys’ fees and amounts due under Article III) payable to the Administrative Agent in its capacity as such; (ii) second, to the payment of that portion of the Obligations constituting fees, indemnities and expenses (including attorneys’ fees and amounts due under Article III) payable to each Lender, ratably among them in proportion to the aggregate of all such amounts; (iii) third, to the payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans, ratably among the Lenders in proportion to the aggregate of all such amounts; (iv) fourth, pro rata to the payment of that portion of the Obligations constituting unpaid principal of the Loans ratably among the Lenders in proportion to the aggregate of all such amounts; (v) fifth, to the payment of all other Obligations of the Credit Parties owing under or in respect of the Loan Documents that are then due and payable to the Secured Creditors, ratably based upon the respective aggregate amounts of all such Obligations owing to them on such date; and (vi) finally, any remaining surplus after all of the Obligations have been paid in full, unless required to be distributed pursuant to Section 4.1 of the Priming Facility Intercreditor Agreement, to the Parent Guarantor or to whomsoever shall be lawfully entitled thereto. It is understood and agreed that if a Triggering Event occurs, including as a result of the occurrence of an Event of Default, the Make-Whole Premium determined as of the date of such Triggering Event will also be due and payable and will be treated and deemed as though the Term Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein (subject to the Make-Whole Premium Exceptions) in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s loss as a result thereof. Any Make-Whole Premium payable pursuant to Section 2.13(g) shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Triggering Event, and the Borrower agrees that it is reasonable under the circumstances currently existing. The Make-Whole Premium, if any, shall also be payable in the event the Obligations (and/or this Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed #4848-6974-4858 in lieu of foreclosure or by any other means. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER HEREBY EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING MAKE-WHOLE PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION, EXCEPT AS A RESULT OF A MAKE-WHOLE PREMIUM EXCEPTION. The Borrower expressly agrees that (A) the Make-Whole Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the #4842-1976-9300 #4848-6974-4858 Make-Whole Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Borrower giving specific consideration in this transaction for such agreement to pay the Make-Whole Premium, (D) the Borrower shall be estopped hereafter from claiming differently than as agreed to in this paragraph, (E) its agreement to pay the Make-Whole Premium is a material inducement to the Lenders, (F) the Make-Whole Premium represents a good faith, reasonable estimate of liquidated damages (including without limitation a calculation of the lost profits or other damages, and are a proportionate quantification of the actual loss of the anticipated stream of interest payments upon an early prepayment or acceleration of the Term Loans) of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Triggering Event for various reasons (including, without limitation, because such damages would depend on, among other things, (1) when the Lenders might otherwise be repaid and (2) future changes in interest rates which are not readily ascertainable on the Closing Date), (G) to the extent it becomes due and payable in accordance with the terms of this Agreement, the Make-Whole Premium represents additional consideration for providing the Term Loans, and (H) the Make-Whole Premium is not a penalty to punish the Borrower for their early prepayment of the Term Loans or for the occurrence of any Event of Default or acceleration. It is expressly acknowledged and agreed that the Make-Whole Premium for purposes of this Agreement and the foregoing paragraph includes the premium set forth in clause (b) of the definition of “Make-Whole Premium”.

Application of Certain Payments and Proceeds. #4842-1976-9300 #4848-6974-4858 (a) All payments and other amounts received by the Administrative Agent or any Lender from any Borrower or as proceeds of Collateral of any Borrower, in each case through the exercise of remedies hereunder or under the other Loan Documents from any Credit Party and all proceeds received by the Administrative Agent in respect of any sale of, collection from, or other realization upon all or any part of the Collateral pledged by the Credit Parties shall, unless otherwise required by the terms of the other Loan Documents or by applicable law, be applied as follows: (i) first, to the payment of that portion of the Obligations of such Borrower constituting fees, indemnities and expenses and other amounts (including attorneys’ fees and amounts due under Article III) payable to the Administrative Agent in its capacity as such; (ii) second, to the payment of that portion of the Obligations of such Borrower constituting fees, indemnities and expenses (including attorneys’ fees and amounts due under Article III) payable to each Lender, ratably among them in proportion to the aggregate of all such amounts; (iii) third, to the payment of that portion of the Obligations of such Borrower constituting accrued and unpaid interest on the Loans, ratably among the Lenders in proportion to the aggregate of all such amounts; (iv) fourth, pro rata to the payment of that portion of the Obligations of such Borrower constituting unpaid principal of the Loans Loans, ratably among the Lenders in proportion to the aggregate of all such amounts; (v) fifth, to the payment of all other Obligations of the Credit Parties owing under or in respect of the Loan Documents that are then due and payable to the Secured CreditorsAdministrative Agent and the Lenders, ratably based upon the respective aggregate amounts of all such Obligations owing to them on such date; and (vi) finally, any remaining surplus after all of the Obligations have been paid in full, unless required to be distributed pursuant to Section 4.1 of the Priming Facility Intercreditor Agreement, to the Parent Guarantor Borrowers or to whomsoever shall be lawfully entitled thereto. It is understood and agreed that if a Triggering Event occurs, including as a result of the occurrence of an Event of Default, the Make-Whole Premium determined as of the date of such Triggering Event will also be due and payable and will be treated and deemed as though the Term Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein (subject to the Make-Whole Premium Exceptions) in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s loss as a result thereof. Any Make-Whole Premium payable pursuant to Section 2.13(g) shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Triggering Event, and the Borrower agrees that it is reasonable under the circumstances currently existing. The Make-Whole Premium, if any, shall also be payable in the event the Obligations (and/or this Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER HEREBY EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING MAKE-WHOLE PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION, EXCEPT AS A RESULT OF A MAKE-WHOLE PREMIUM EXCEPTION. The Borrower expressly agrees that (A) the Make-Whole Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the #4842-1976-9300 #4848-6974-4858 Make-Whole Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Borrower giving specific consideration in this transaction for such agreement to pay the Make-Whole Premium, (D) the Borrower shall be estopped hereafter from claiming differently than as agreed to in this paragraph, (E) its agreement to pay the Make-Whole Premium is a material inducement to the Lenders, (F) the Make-Whole Premium represents a good faith, reasonable estimate of liquidated damages (including without limitation a calculation of the lost profits or other damages, and are a proportionate quantification of the actual loss of the anticipated stream of interest payments upon an early prepayment or acceleration of the Term Loans) of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Triggering Event for various reasons (including, without limitation, because such damages would depend on, among other things, (1) when the Lenders might otherwise be repaid and (2) future changes in interest rates which are not readily ascertainable on the Closing Date), (G) to the extent it becomes due and payable in accordance with the terms of this Agreement, the Make-Whole Premium represents additional consideration for providing the Term Loans, and (H) the Make-Whole Premium is not a penalty to punish the Borrower for their early prepayment of the Term Loans or for the occurrence of any Event of Default or acceleration. It is expressly acknowledged and agreed that the Make-Whole Premium for purposes of this Agreement and the foregoing paragraph includes the premium set forth in clause (b) of the definition of “Make-Whole Premium”.

Application of Certain Payments and Proceeds. #4842-1976-9300 #4848-6974-4858 (a) All payments and other amounts received by the Administrative Agent or any Lender through the exercise of remedies hereunder or under the other Loan Documents from any Credit Party and all proceeds received by the Administrative Agent in respect of any sale of, collection from, or other realization upon all or any part of the Collateral pledged by the Credit Parties shall, unless otherwise required by the terms of the other Loan Documents or by applicable law, be applied as follows: (i) first, to the payment of that portion all expenses (to the extent not otherwise paid by the Borrower or any of the Obligations constituting feesGuarantors) incurred by the Agent and the Lenders in connection with the exercise of such remedies, indemnities including, without limitation, all reasonable costs and expenses and other amounts (including of collection, reasonable attorneys’ fees fee and amounts due under Article III) payable to the Administrative Agent in its capacity as suchexpenses, court costs and any foreclosure expenses; (ii) second, to the payment pro rata of that portion of interest then accrued on the Obligations constituting fees, indemnities and expenses (including attorneys’ fees and amounts due under Article III) payable to each Lender, ratably among them in proportion to the aggregate of all such amountsoutstanding Loans; (iii) third, to the payment pro rata of that portion any fees and expenses (other than expenses paid under item (i) above) then accrued and payable to the Agent, any Issuing Bank or any Lender under this Agreement in respect of the Obligations constituting accrued and unpaid interest on Loans or the Loans, ratably among the Lenders in proportion to the aggregate Letters of all such amountsCredit; (iv) fourth, pro rata to the payment pro rata of that portion (A) the principal balance then owing on the outstanding Loans, (B) the amounts then due under Designated Hedge Agreements to creditors of the Obligations constituting unpaid Borrower or any Subsidiary, subject to confirmation by the Agent of any calculations of termination or other payment amounts being made in accordance with normal industry practice, (C) the principal amount of the Loans ratably among outstanding Letters of Credit (to be held and applied by the Lenders Agent as security for the reimbursement obligations in proportion to respect thereof) and (D) the aggregate unreimbursed amount of all such amountsany LC Disbursements; (v) fifth, to the payment of all other Obligations of the Credit Parties owing under or in respect of the Loan Documents that are then due and payable to the Secured CreditorsLenders of any amounts then accrued and unpaid under Sections 2.9, ratably based upon 2.10 and 2.11 of this Agreement, and if such proceeds are insufficient to pay such amounts in full, to the respective aggregate payment of such amounts of all such Obligations owing to them on such date; andpro rata; (vi) finallysixth, to the payment pro rata of all other amounts owed by the Borrower to the Agent, to any remaining surplus after all Issuing Bank or any Lender under this Agreement or any other Loan Document, and to any counterparties under Designated Hedge Agreements of the Obligations have been paid Borrower and any Subsidiary, and if such proceeds are insufficient to pay such amounts in full, unless required to be distributed pursuant to Section 4.1 of the Priming Facility Intercreditor Agreement, to the Parent Guarantor or to whomsoever shall be lawfully entitled thereto. It is understood and agreed that if a Triggering Event occurs, including as a result of the occurrence of an Event of Default, the Make-Whole Premium determined as of the date payment of such Triggering Event will also be due and payable and will be treated and deemed as though the Term Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein (subject to the Make-Whole Premium Exceptions) in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s loss as a result thereof. Any Make-Whole Premium payable pursuant to Section 2.13(g) shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Triggering Event, and the Borrower agrees that it is reasonable under the circumstances currently existing. The Make-Whole Premium, if any, shall also be payable in the event the Obligations (and/or this Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER HEREBY EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING MAKE-WHOLE PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION, EXCEPT AS A RESULT OF A MAKE-WHOLE PREMIUM EXCEPTION. The Borrower expressly agrees that (A) the Make-Whole Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the #4842-1976-9300 #4848-6974-4858 Make-Whole Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Borrower giving specific consideration in this transaction for such agreement to pay the Make-Whole Premium, (D) the Borrower shall be estopped hereafter from claiming differently than as agreed to in this paragraph, (E) its agreement to pay the Make-Whole Premium is a material inducement to the Lenders, (F) the Make-Whole Premium represents a good faith, reasonable estimate of liquidated damages (including without limitation a calculation of the lost profits or other damages, and are a proportionate quantification of the actual loss of the anticipated stream of interest payments upon an early prepayment or acceleration of the Term Loans) of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Triggering Event for various reasons (including, without limitation, because such damages would depend on, among other things, (1) when the Lenders might otherwise be repaid and (2) future changes in interest rates which are not readily ascertainable on the Closing Date), (G) to the extent it becomes due and payable in accordance with the terms of this Agreement, the Make-Whole Premium represents additional consideration for providing the Term Loans, and (H) the Make-Whole Premium is not a penalty to punish the Borrower for their early prepayment of the Term Loans or for the occurrence of any Event of Default or acceleration. It is expressly acknowledged and agreed that the Make-Whole Premium for purposes of this Agreement and the foregoing paragraph includes the premium set forth in clause (b) of the definition of “Make-Whole Premium”.amounts pro rata; and