Early Termination Fee. In the event of the termination of the Revolving Credit Commitments, the Borrower shall pay a fee to the Agent for the benefit of the Lenders ratably (the "Early Termination Fee"), equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the Total Revolving Credit including, day preceding Committed Amount the first anniversary date of the Closing Date First anniversary date 1% of the Total Revolving Credit of the Closing Date, Committed Amount through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the Total Revolving of the Closing Date, Credit Committed Amount through and including, the day preceding the third anniversary date of the Closing Date In the event of a partial reduction of the Revolving Credit Commitments, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount of the including, day preceding Revolving Credit Optional the first anniversary date Reduction of the Closing Date First anniversary date 1% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the third anniversary date In the event the Term Loans are refinanced or replaced with the proceeds of Indebtedness for Borrowed Money, in whole or in part, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount prepaid including, day preceding the first anniversary date of the Closing Date First anniversary date 1% of the amount prepaid of the Closing Date, through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount prepaid of the Closing Date, through and including, the day preceding the third anniversary date Notwithstanding the foregoing, the Borrower shall not be required to pay the Early Termination Fee in connection with such a refinancing or replacement of the Term Loans and the termination or partial reduction of the Revolving Credit Commitments from the proceeds of a public offering of Securities by the Borrower or the Parent. Nothing contained in this Section shall be deemed a waiver by the Agent or any Lender of any Default or Event of Default which results from any such public offering of Securities by the Borrower and/or the closing of a purchase, acquisition or investment otherwise prohibited by the provisions of this Agreement, which does not result in a prepayment of all Obligations and a termination of all Letters of Credit, all Bond Letters of Credit and Commitments. In addition, if the Borrower requests that the Requisite Lenders consent to the purchase or acquisition of, or investment in, any Person which would not otherwise be permitted by the provisions of this Agreement, and the Requisite Lenders refuse to agree and consent to any such purchase, acquisition or investment, the Borrower may, at its option, prepay all of the Obligations in full and terminate all of the Commitments and shall have no obligation to pay an Early Termination Fee in connection with any such prepayment and termination; provided, that (i) all Letters of Credit and all Bond Letters of Credit are terminated or otherwise secured by the issuance of one or more back-to-back letters of credit from an issuer and containing terms reasonably acceptable to the Agent, (ii) all Obligations are paid in full, (iii) all Commitments are terminated, and (iv) to the extent the Borrower intends to finance such purchase, acquisition or investment, any one of the Lenders have not agreed to provide such financing after having been first offered the opportunity by the Borrower to provide such financing substantially on the same terms and conditions as are actually proposed to the Borrower from another lender or financial institution. A Lender shall be deemed to have so declined to provide the requested financing for the proposed acquisition, purchase or other investment unless such Lender has otherwise notified the Borrower in writing within fifteen (15) days of its receipt of all proposed material terms and conditions of the proposed acquisition, purchase or investment and any requested financing that such Lender wishes to participate in such financing. The Lenders understand and agree that the Borrower shall be required only to furnish to the Agent and the Lenders a term sheet summarizing the proposed terms for such financing to be prepared by the Borrower based on actual terms proposed by such other lender or financial institution, and that neither the Borrower nor any such other lender or financial institution shall have any obligation to furnish to the Agent or the Lenders copies of actual commitments, proposals or correspondence from such other lender or financial institution or independent verification of any such proposed terms. Payment of all or any portion of the Obligations relating to the Revolving Loan and/or the Term Loans and/or termination or reduction of any of the Commitments, in whole or in part, by or on behalf of the Borrower, by court order or otherwise, following and as a result of the institution of any bankruptcy proceeding by or against the Borrower, shall be deemed to be a prepayment of the Revolving Loan and the Term Loans, and/or termination or reduction of the Commitments, as appropriate, subject to payment of the Early Termination Fee provided in this subsection if any or all of the Obligations are actually paid and/or any or all of the Commitments are terminated or reduced at any time during the periods set forth above. All Early Termination Fees shall be paid to the Agent for the ratable benefit of the Lenders.

Appears in 2 contracts

Samples: Financing and Security Agreement (BPC Holding Corp), Financing and Security Agreement (BPC Holding Corp)

Early Termination Fee. ~~In the event of the termination of the Revolving Credit Commitments,~~ If the Borrower ~~shall pay a fee to~~ makes the ~~Agent for the benefit of the Lenders ratably (the "Early Termination Fee")~~Permitted No-Call Prepayment or, ~~equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the Total Revolving Credit including, day preceding Committed Amount~~ after the first anniversary ~~date~~ of the ~~Closing Date First anniversary date 1%~~ Effective Date, in the event that the Borrower prepays or repays all or part of the ~~Total Revolving Credit~~ Loans pursuant to Section 2.04 or as a result of an acceleration of the ~~Closing Date~~Loan pursuant to Section 8.02, ~~Committed Amount through~~ unless such prepayment or repayment is required (and ~~including~~not otherwise waived by the Required Lenders) pursuant to Section 2.04(b) or (c), the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the Total Revolving of the Closing Date, Credit Committed Amount through and including, the day preceding the third anniversary date of the Closing Date In the event of a partial reduction of the Revolving Credit Commitments, then the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount of the including, day preceding Revolving Credit Optional the first anniversary date Reduction of the Closing Date First anniversary date 1% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the third anniversary date In the event the Term Loans are refinanced or replaced with the proceeds of Indebtedness for Borrowed Money, in whole or in part, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount prepaid including, day preceding the first anniversary date of the Closing Date First anniversary date 1% of the amount prepaid of the Closing Date, through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount prepaid of the Closing Date, through and including, the day preceding the third anniversary date Notwithstanding the foregoing, the Borrower shall not be required to pay the Early Termination Fee in connection with such a refinancing or replacement of the Term Loans and the termination or partial reduction of the Revolving Credit Commitments from the proceeds of a public offering of Securities by the Borrower or the Parent. Nothing contained in this Section shall be deemed a waiver by the Agent or any Lender of any Default or Event of Default which results from any such public offering of Securities by the Borrower and/or the closing of a purchase, acquisition or investment otherwise prohibited by the provisions of this Agreement, which does not result in a prepayment of all Obligations and a termination of all Letters of Credit, all Bond Letters of Credit and Commitments. In addition, if the Borrower requests that the Requisite Lenders consent to the purchase or acquisition of, or investment in, any Person which would not otherwise be permitted by the provisions of this Agreement, and the Requisite Lenders refuse to agree and consent to any such purchase, acquisition or investment, the Borrower may, at its option, prepay all of the Obligations in full and terminate all of the Commitments and shall have no obligation to pay an Early Termination Fee in connection with any such prepayment and termination; provided, that (i) all Letters of Credit and all Bond Letters of Credit are terminated or otherwise secured by the issuance of one or more back-to-back letters of credit from an issuer and containing terms reasonably acceptable to the Agent, (ii) all Obligations are paid in full, (iii) all Commitments are terminated, and (iv) to the extent the Borrower intends to finance such purchase, acquisition or investment, any one of the Lenders have not agreed to provide such financing after having been first offered the opportunity by the Borrower to provide such financing substantially on the same terms and conditions as are actually proposed to the Borrower from another lender or financial institution. A Lender shall be deemed to have so declined to provide the requested financing for the proposed acquisition, purchase or other investment unless such Lender has otherwise notified the Borrower in writing within fifteen (15) days of its receipt of all proposed material terms and conditions of the proposed acquisition, purchase or investment and any requested financing that such Lender wishes to participate in such financing. The Lenders understand and agree that the Borrower shall be required only to furnish to the Agent and the Lenders a term sheet summarizing the proposed terms for such financing to be prepared by the Borrower based on actual terms proposed by such other lender or financial institution, and that neither the Borrower nor any such other lender or financial institution shall have any obligation to furnish to the Agent or the Lenders copies of actual commitments, proposals or correspondence from such other lender or financial institution or independent verification of any such proposed terms. Payment of all or any portion of the Obligations relating to the Revolving Loan and/or the Term Loans and/or termination or reduction of any of the Commitments, in whole or in part, by or on behalf of the Borrower, by court order or otherwise, following and as a result of the institution of any bankruptcy proceeding by or against the Borrower, shall be deemed to be a prepayment of the Revolving Loan and the Term Loans, and/or termination or reduction of the Commitments, as appropriate, subject to payment of the Early Termination Fee provided in this subsection if any or all of the Obligations are actually paid and/or any or all of the Commitments are terminated or reduced at any time during the periods set forth above. All Early Termination Fees shall be paid to the Agent for the ratable benefit of the Lenders, a fee (the “Early Termination Fee”) equal to (i) if such prepayment or repayment is the Permitted No-Call Prepayment, three percent (3%) of the outstanding principal amount of the Loans prepaid or repaid at such time or (ii) if such prepayment or repayment is not the Permitted No-Call Prepayment, (A) if such prepayment or repayment occurs after the first anniversary of the Effective Date and prior to the second anniversary of the Effective Date, three percent (3%) of the outstanding principal amount of the Loans prepaid or repaid at such time and (B) if such prepayment or repayment occurs on or after the second anniversary of the Effective Date and prior to the third anniversary of the Effective Date, one (1%) percent of the outstanding principal amount of the Loan prepaid or repaid at such time; provided, that if such prepayment occurs on or after the third anniversary of the Effective Date no Early Termination Fee shall be due and payable. All parties to this Agreement agree and acknowledge that the Lenders will have suffered damages on account of the prepayment of the Loans during such timeframe set forth in this Section 2.08(b) and that, in view of the difficulty in ascertaining the amount of such damages, the Early Termination Fee constitutes reasonable compensation and liquidated damages to compensate the Lenders on account thereof.

Appears in 2 contracts

Samples: Second Lien Credit Agreement (Sequential Brands Group, Inc.), Amendment and Restatement Agreement (Sequential Brands Group, Inc.)

Early Termination Fee. In the event that the Borrower prepays or repays all or part of the ~~termination~~ Loans pursuant to Section 2.04 (unless such prepayment or repayment is made pursuant to Section 2.04(b), 2.04(c), 2.04(d) (in each case, regardless of whether any prepayment or repayment is required to be made pursuant to Section 2.04 of the ~~Revolving~~ BoA Credit ~~Commitments,~~ Agreement (as in effect on the ~~Borrower shall pay~~ Third Amendment Effective Date) at such time from the applicable proceeds) or 2.06(a)) or as a ~~fee to the Agent for the benefit~~ result of an acceleration of the ~~Lenders ratably (the "Early Termination Fee")~~Loans pursuant to Section 8.02, equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the Total Revolving Credit including, day preceding Committed Amount the first anniversary date of the Closing Date First anniversary date 1% of the Total Revolving Credit of the Closing Date, Committed Amount through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the Total Revolving of the Closing Date, Credit Committed Amount through and including, the day preceding the third anniversary date of the Closing Date In the event of a partial reduction of the Revolving Credit Commitments, then the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount of the including, day preceding Revolving Credit Optional the first anniversary date Reduction of the Closing Date First anniversary date 1% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the third anniversary date In the event the Term Loans are refinanced or replaced with the proceeds of Indebtedness for Borrowed Money, in whole or in part, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount prepaid including, day preceding the first anniversary date of the Closing Date First anniversary date 1% of the amount prepaid of the Closing Date, through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount prepaid of the Closing Date, through and including, the day preceding the third anniversary date Notwithstanding the foregoing, the Borrower shall not be required to pay the Early Termination Fee in connection with such a refinancing or replacement of the Term Loans and the termination or partial reduction of the Revolving Credit Commitments from the proceeds of a public offering of Securities by the Borrower or the Parent. Nothing contained in this Section shall be deemed a waiver by the Agent or any Lender of any Default or Event of Default which results from any such public offering of Securities by the Borrower and/or the closing of a purchase, acquisition or investment otherwise prohibited by the provisions of this Agreement, which does not result in a prepayment of all Obligations and a termination of all Letters of Credit, all Bond Letters of Credit and Commitments. In addition, if the Borrower requests that the Requisite Lenders consent to the purchase or acquisition of, or investment in, any Person which would not otherwise be permitted by the provisions of this Agreement, and the Requisite Lenders refuse to agree and consent to any such purchase, acquisition or investment, the Borrower may, at its option, prepay all of the Obligations in full and terminate all of the Commitments and shall have no obligation to pay an Early Termination Fee in connection with any such prepayment and termination; provided, that (i) all Letters of Credit and all Bond Letters of Credit are terminated or otherwise secured by the issuance of one or more back-to-back letters of credit from an issuer and containing terms reasonably acceptable to the Agent, (ii) all Obligations are paid in full, (iii) all Commitments are terminated, and (iv) to the extent the Borrower intends to finance such purchase, acquisition or investment, any one of the Lenders have not agreed to provide such financing after having been first offered the opportunity by the Borrower to provide such financing substantially on the same terms and conditions as are actually proposed to the Borrower from another lender or financial institution. A Lender shall be deemed to have so declined to provide the requested financing for the proposed acquisition, purchase or other investment unless such Lender has otherwise notified the Borrower in writing within fifteen (15) days of its receipt of all proposed material terms and conditions of the proposed acquisition, purchase or investment and any requested financing that such Lender wishes to participate in such financing. The Lenders understand and agree that the Borrower shall be required only to furnish to the Agent and the Lenders a term sheet summarizing the proposed terms for such financing to be prepared by the Borrower based on actual terms proposed by such other lender or financial institution, and that neither the Borrower nor any such other lender or financial institution shall have any obligation to furnish to the Agent or the Lenders copies of actual commitments, proposals or correspondence from such other lender or financial institution or independent verification of any such proposed terms. Payment of all or any portion of the Obligations relating to the Revolving Loan and/or the Term Loans and/or termination or reduction of any of the Commitments, in whole or in part, by or on behalf of the Borrower, by court order or otherwise, following and as a result of the institution of any bankruptcy proceeding by or against the Borrower, shall be deemed to be a prepayment of the Revolving Loan and the Term Loans, and/or termination or reduction of the Commitments, as appropriate, subject to payment of the Early Termination Fee provided in this subsection if any or all of the Obligations are actually paid and/or any or all of the Commitments are terminated or reduced at any time during the periods set forth above. All Early Termination Fees shall be paid to the Agent for the ratable benefit of the Lenders, a fee (the “Early Termination Fee”) equal to (i) if such prepayment or repayment occurs on or after the Third Amendment Effective Date and prior to the twelfth (12th) month anniversary of the Third Amendment Effective Date, three percent (3%) of the outstanding principal amount of the Loans prepaid or repaid at such time, (ii) if such prepayment or repayment occurs on or after the twelfth (12th) month anniversary of the Third Amendment Effective Date and prior to the twenty-fourth (24th) month anniversary of the Third Amendment Effective Date, two percent (2%) of the outstanding principal amount of the Loans prepaid or repaid at such time or (iii) if such prepayment or repayment occurs on or after the twenty-fourth (24th) month anniversary of the Third Amendment Effective Date and prior to the thirty-sixth (36th) month anniversary of the Third Amendment Effective Date, one percent (1%) of the outstanding principal amount of the Loans prepaid or repaid at such time; provided, that if such prepayment or repayment occurs on or after the thirty-sixth (36th) month anniversary of the Third Amendment Effective Date, no Early Termination Fee shall be due and payable; provided further, that if such prepayment or repayment is made in connection with or immediately following a Change of Control or Transformative Acquisition, the Early Termination Fee shall instead be (i) if such prepayment or repayment occurs on or after the Third Amendment Effective Date and prior to the twelfth (12th) month anniversary of the Third Amendment Effective Date, two percent (2%) of the outstanding principal amount of the Loans prepaid or repaid at such time, (ii) if such prepayment or repayment occurs on or after the twelfth (12th) month anniversary of the Third Amendment Effective Date and prior to the twenty-fourth (24th) month anniversary of the Third Amendment Effective Date, one percent (1%) of the outstanding principal amount of the Loans prepaid or repaid at such time or (iii) if such prepayment or repayment occurs on or after the twenty-fourth (24th) month anniversary of the Third Amendment Effective Date, no Early Termination Fee shall be due and payable. All parties to this Agreement agree and acknowledge that the Lenders will have suffered damages on account of the prepayment of the Loans during such timeframe set forth in this Section 2.08(b) and that, in view of the difficulty in ascertaining the amount of such damages, the Early Termination Fee constitutes reasonable compensation and liquidated damages to compensate the Lenders on account thereof.”

Appears in 1 contract

Samples: Credit Agreement (Sequential Brands Group, Inc.)

Early Termination Fee. In the event of that the ~~termination of~~ Termination Date occurs, for any reason, prior to the Maturity Date, or in the event that the Borrowers reduce (but do not terminate) the Aggregate Revolving ~~Credit Commitments~~Commitments prior to the Maturity Date, the Borrower shall pay a fee to the Agent for the benefit of the Lenders ratably (the "Early Termination Fee"), equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the Total Revolving Credit including, day preceding Committed Amount the first anniversary date of the Closing Date First anniversary date 1% of the Total Revolving Credit of the Closing Date, Committed Amount through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the Total Revolving of the Closing Date, Credit Committed Amount through and including, the day preceding the third anniversary date of the Closing Date In the event of a partial reduction of the Revolving Credit Commitments, the Borrower Borrowers shall pay to the ~~Agent~~ Agent, for the ~~benefit~~ account of each Revolving Lender in accordance with its Applicable Percentage, a fee (the ~~Lenders ratably, an~~ “Early Termination ~~Fee~~ Fee”) in respect of amounts which are or become payable by reason thereof equal to ~~following amount at~~ the ~~following times~~following: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount of the including, day preceding Revolving Credit Optional the first anniversary date Reduction of the Closing Date First anniversary date 1% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the third anniversary date In the event the Term Loans are refinanced or replaced with the proceeds of Indebtedness for Borrowed Money, in whole or in part, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount prepaid including, day preceding the first anniversary date of the Closing Date First anniversary date 1% of the amount prepaid of the Closing Date, through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount prepaid of the Closing Date, through and including, the day preceding the third anniversary date Notwithstanding the foregoing, the Borrower shall not be required to pay the Early Termination Fee in connection with such a refinancing or replacement of the Term Loans and the termination or partial reduction (i) three percent (3%) of the Revolving Credit Commitments ~~from~~ then in effect (without regard to any termination thereof) or of the ~~proceeds of a public offering of Securities by the Borrower or the Parent. Nothing contained in this Section shall be deemed a waiver by the Agent or any Lender~~ amount of any ~~Default or Event of Default which results from any such public offering of Securities by~~ reduction in the ~~Borrower and/or the closing of a purchase~~Aggregate Revolving Commitments, acquisition or investment otherwise prohibited by the provisions of this Agreement, which does not result in a prepayment of all Obligations and a termination of all Letters of Credit, all Bond Letters of Credit and Commitments. In additionas applicable, if the ~~Borrower requests that~~ Termination Date or reduction shall occur at any time on or before the Requisite Lenders consent to the purchase or acquisition of, or investment in, any Person which would not otherwise be permitted by the provisions of this Agreement, and the Requisite Lenders refuse to agree and consent to any such purchase, acquisition or investment, the Borrower may, at its option, prepay all first anniversary of the ~~Obligations in full and terminate all of the Commitments and shall have no obligation to pay an Early Termination Fee in connection with any such prepayment and termination~~First Amendment Effective Date; provided, that (i) all Letters of Credit and all Bond Letters of Credit are terminated or otherwise secured by the issuance of one or more back-to-back letters of credit from an issuer and containing terms reasonably acceptable to the Agent, (ii) ~~all Obligations are paid~~ two percent (2%) of the Revolving Credit Commitments then in ~~full~~effect (without regard to any termination thereof) or of the amount of any reduction in the Aggregate Revolving Commitments, as applicable, if the Termination Date or reduction shall occur at any time after the first anniversary of the First Amendment Effective Date and on or prior to the second anniversary of the First Amendment Effective Date; (iii) ~~all~~ one percent (1%) of the Revolving Credit Commitments ~~are terminated~~then in effect (without regard to any termination thereof) or of the amount of any reduction in the Aggregate Revolving Commitments, as applicable, if the Termination Date or reduction shall occur at any time after the second anniversary of the First Amendment Effective Date and on or prior to the third anniversary of the First Amendment Effective Date and (iviii) ~~to the extent the Borrower intends to finance such purchase, acquisition or investment, any one~~ zero percent (0%) of the ~~Lenders have not agreed~~ Revolving Credit Commitments then in effect (without regard to provide such financing after having been first offered the opportunity by the Borrower to provide such financing substantially on the same terms and conditions as are actually proposed to the Borrower from another lender any termination thereof) or financial institution. A Lender shall be deemed to have so declined to provide the requested financing for the proposed acquisition, purchase or other investment unless such Lender has otherwise notified the Borrower in writing within fifteen (15) days of its receipt of all proposed material terms and conditions of the ~~proposed acquisition~~amount of any reduction in the Aggregate Revolving Commitments, ~~purchase~~ as applicable, if the Termination Date or ~~investment~~ reduction shall occur at any time after the third anniversary of the Closing Date. All parties to this Agreement agree and ~~any requested financing that such Lender wishes to participate in such financing. The Lenders understand and agree~~ acknowledge that the ~~Borrower shall be required only to furnish to~~ Revolving Lenders will have suffered damages on account of the Agent and the Lenders a term sheet summarizing the proposed terms for such financing to be prepared by the Borrower based on actual terms proposed by such other lender or financial institution, and that neither the Borrower nor any such other lender or financial institution shall have any obligation to furnish to the Agent or the Lenders copies early termination of ~~actual commitments, proposals or correspondence from such other lender or financial institution or independent verification of any such proposed terms. Payment of all~~ this Agreement or any portion of the ~~Obligations relating to the~~ Revolving ~~Loan and/or the Term Loans and/or termination or reduction of any~~ Credit Commitments and that, in view of the ~~Commitments~~difficulty in ascertaining the amount of such damages, in whole or in part, by or on behalf of the Borrower, by court order or otherwise, following and as a result of the institution of any bankruptcy proceeding by or against the Borrower, shall be deemed to be a prepayment of the Revolving Loan and the Term Loans, and/or termination or reduction of the Commitments, as appropriate, subject to payment of the Early Termination Fee ~~provided in this subsection if any or all of~~ constitutes reasonable compensation and liquidated damages to compensate the Obligations are actually paid and/or any or all of the Commitments are terminated or reduced at any time during the periods set forth above. All Early Termination Fees shall be paid to the Agent for the ratable benefit of the LendersRevolving Lenders on account thereof.”

Appears in 1 contract

Samples: Credit Agreement (Alco Stores Inc)

Early Termination Fee. In the event of that the ~~termination of~~ Facility Termination Date occurs, for any reason, prior to the ~~Revolving Credit Commitments~~Maturity Date, or in the event that the Borrower ~~shall pay a fee~~ reduces (but does not terminate) the Aggregate Revolving Commitments prior to the ~~Agent for the benefit of the Lenders ratably (the "Early Termination Fee"), equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing~~ Maturity Date, through and 2% of the Total Revolving Credit including, day preceding Committed Amount the first anniversary date of the Closing Date First anniversary date 1% of the Total Revolving Credit of the Closing Date, Committed Amount through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the Total Revolving of the Closing Date, Credit Committed Amount through and including, the day preceding the third anniversary date of the Closing Date In the event of a partial reduction of the Revolving Credit Commitments, the Borrower shall pay to the ~~Agent~~ Administrative Agent, for the ~~benefit~~ account of each Lender in accordance with its Applicable Percentage, a fee (the “Early Termination Fee”) in respect of amounts which are or become payable by reason thereof equal to the following: (i) three percent (3%) of the ~~Lenders ratably~~Aggregate Revolving Commitments then in effect (without regard to any termination thereof), ~~an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2%~~ or of the amount of any reduction in the ~~including~~Aggregate Revolving Commitments, ~~day preceding Revolving Credit Optional~~ as applicable, if the Facility Termination Date or reduction, respectively, shall occur at any time on or before the first anniversary ~~date Reduction~~ of the Closing Date; (ii) two percent (2%) of the Aggregate Revolving Commitments then in effect (without regard to any termination thereof), or of the amount of any reduction in the Aggregate Revolving Commitments, as applicable, if the Facility Termination Date or reduction, respectively, shall occur at any time after the first anniversary of the Closing Date ~~First~~ but on or prior to the second anniversary ~~date 1%~~ of the Closing Date; and (iii) zero percent (0%) of the Aggregate Revolving Commitments then in effect (without regard to any termination thereof), or of the amount of any reduction in the Aggregate Revolving Commitments, as applicable, if the Facility Termination Date or reduction, respectively, shall occur at any time after the second anniversary of the Closing Date; provided that if the Facility Termination Date occurs during the period described in the foregoing clause (ii) solely as a result of a Transformative Event (as defined below), ~~Revolving Credit Optional through~~ then the Early Termination Fee payable hereunder shall be one and ~~including, Reduction the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount~~ one quarter percent (1.25%) of the of the ~~Closing Date~~Aggregate Revolving Commitments then in effect (without regard to any termination thereof). For purposes of the preceding sentence, ~~Revolving Credit Optional through and including~~“Transformative Event” shall mean any merger, ~~Reduction the day preceding the third anniversary date In the event the Term Loans are refinanced~~ acquisition, investment or ~~replaced with the proceeds of Indebtedness for Borrowed Money~~consolidation, in whole or in part, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount prepaid including, day preceding the first anniversary date of the Closing Date First anniversary date 1% of the amount prepaid of the Closing Date, through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount prepaid of the Closing Date, through and including, the day preceding the third anniversary date Notwithstanding the foregoing, the Borrower shall not be required to pay the Early Termination Fee in connection with any such ~~a refinancing or replacement of the Term Loans and the termination or partial reduction of the Revolving Credit Commitments from the proceeds of a public offering of Securities~~ case by the Borrower or ~~the Parent. Nothing contained in this Section shall be deemed a waiver~~ any Subsidiary that either (i) is not permitted by the ~~Agent or any Lender~~ terms of any ~~Default~~ Loan Document immediately prior to the consummation of such transaction or ~~Event~~ (ii) if permitted by the terms of ~~Default which results from any~~ the Loan Documents immediately prior to the consummation of such ~~public offering~~ transaction, would not provide the Borrower and its Subsidiaries with adequate flexibility under the Loan Documents for the continuation and/or expansion of ~~Securities~~ their combined operations following such consummation, as reasonably determined by the Borrower ~~and/or the closing~~ acting in good faith, in each case of a purchase, acquisition or investment otherwise prohibited by the provisions of this Agreement, which does not result in a prepayment of all Obligations and a termination of all Letters of Credit, all Bond Letters of Credit and Commitments. In addition, if the Borrower requests that the Requisite Lenders consent to the purchase or acquisition of, or investment in, any Person which would not otherwise be permitted by the provisions of this Agreement, and the Requisite Lenders refuse to agree and consent to any such purchase, acquisition or investment, the Borrower may, at its option, prepay all of the Obligations in full and terminate all of the Commitments and shall have no obligation to pay an Early Termination Fee in connection with any such prepayment and termination; provided, that clauses (i) ~~all Letters of Credit and all Bond Letters of Credit are terminated~~ or ~~otherwise secured by the issuance of one or more back-to-back letters of credit from an issuer and containing terms reasonably acceptable to the Agent,~~ (ii~~) all Obligations are paid in full, (iii) all Commitments are terminated, and (iv~~) to the extent ~~the Borrower intends to finance such purchase, acquisition~~ Axos Bank (or ~~investment, any one of the Lenders have not agreed~~ its Affiliates) is afforded an opportunity to provide ~~such financing after having been first offered~~ or participate in the ~~opportunity~~ debt facility replacing the debt facility contemplated by the ~~Borrower to provide such financing substantially~~ Loan Documents in connection with the Transformative Event, which replacement debt facility is on ~~the same~~ terms and conditions ~~as are actually proposed~~ reasonably satisfactory to Axos Bank. All parties to this Agreement agree and acknowledge that the ~~Borrower from another lender or financial institution. A Lender shall be deemed to~~ Lenders will have so declined to provide the requested financing for the proposed acquisition, purchase or other investment unless such Lender has otherwise notified the Borrower in writing within fifteen (15) days of its receipt of all proposed material terms and conditions suffered damages on account of the ~~proposed acquisition, purchase or investment and any requested financing that such Lender wishes to participate in such financing. The Lenders understand and agree that~~ early termination of the Borrower shall be required only to furnish to the Agent and the Lenders a term sheet summarizing the proposed terms for such financing to be prepared by the Borrower based on actual terms proposed by such other lender or financial institution, and that neither the Borrower nor any such other lender or financial institution shall have any obligation to furnish to the Agent or the Lenders copies of actual commitments, proposals or correspondence from such other lender or financial institution or independent verification of any such proposed terms. Payment of all Credit Agreement or any portion of the ~~Obligations relating to the~~ Aggregate Revolving ~~Loan and/or the Term Loans and/or termination or reduction of any~~ Commitments and that, in view of the ~~Commitments,~~ difficulty in ~~whole or in part, by or on behalf~~ ascertaining the amount of the Borrower, by court order or otherwise, following and as a result of the institution of any bankruptcy proceeding by or against the Borrower, shall be deemed to be a prepayment of the Revolving Loan and the Term Loans, and/or termination or reduction of the Commitments, as appropriate, subject to payment of the Early Termination Fee provided in this subsection if any or all of the Obligations are actually paid and/or any or all of the Commitments are terminated or reduced at any time during the periods set forth above. All Early Termination Fees shall be paid to the Agent for the ratable benefit of the Lenders.such

Appears in 1 contract

Samples: Babcock & Wilcox Enterprises, Inc.

Early Termination Fee. In the event that the Revolving Loan and Term Loan C and Term Loan D are paid in full (other than as a result of payment of Term Loan C or Term Loan D at maturity or by reason of mandatory prepayments from Excess Cash Flow or scheduled reduction of the Term Loans C or Term Loan D by way of payments in accordance with the applicable Term Note or the expiration of the Revolving Loan at maturity), or in the event of any intentional non-compliance by either Borrower with any provisions of this Agreement which results in a termination of the ~~Revolving~~ Credit ~~Commitments~~Facility by Lender pursuant to Section 11.2 or 11.4 hereof, ~~the Borrower shall~~ Borrowers will pay a to Lender an early termination fee ~~to the Agent for the benefit~~ of (a) 3% of the ~~Lenders ratably~~ line of credit approved for Borrowers under the Revolving Loan pursuant to Section 2.3(A) hereof plus the outstanding principal balance then outstanding on Term Loan C and Term Loan D, if the same occurs during the first year following the execution of Consolidated Amendment No. 2 to this Loan Agreement, (~~the "Early Termination Fee"), equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and~~ b) 2% of the ~~Total~~ line of credit approved for Borrowers under the Revolving ~~Credit including~~Loan pursuant to Section 2.3(A) hereof plus the outstanding principal balance then outstanding on Term Loan C and Term Loan D, ~~day preceding Committed Amount~~ if the ~~first anniversary date~~ same occurs during the second year following the execution of ~~the Closing Date First anniversary date~~ Consolidated Amendment No. 2 to this Loan Agreement, and (c) 1% of the ~~Total Revolving Credit~~ line of the Closing Date, Committed Amount through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the Total Revolving of the Closing Date, Credit Committed Amount through and including, the day preceding the third anniversary date of the Closing Date In the event of a partial reduction of credit approved for Borrowers under the Revolving ~~Credit Commitments,~~ Loan pursuant to Section 2.3(A) hereof plus the ~~Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through~~ outstanding principal balance then outstanding on Term Loan C and 2% of the amount of the including, day preceding Revolving Credit Optional the first anniversary date Reduction of the Closing Date First anniversary date 1% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the third anniversary date In the event the Term Loans are refinanced or replaced with the proceeds of Indebtedness for Borrowed Money, in whole or in part, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount prepaid including, day preceding the first anniversary date of the Closing Date First anniversary date 1% of the amount prepaid of the Closing Date, through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount prepaid of the Closing Date, through and including, the day preceding the third anniversary date Notwithstanding the foregoing, the Borrower shall not be required to pay the Early Termination Fee in connection with such a refinancing or replacement of the Term Loans and the termination or partial reduction of the Revolving Credit Commitments from the proceeds of a public offering of Securities by the Borrower or the Parent. Nothing contained in this Section shall be deemed a waiver by the Agent or any Lender of any Default or Event of Default which results from any such public offering of Securities by the Borrower and/or the closing of a purchase, acquisition or investment otherwise prohibited by the provisions of this Agreement, which does not result in a prepayment of all Obligations and a termination of all Letters of Credit, all Bond Letters of Credit and Commitments. In additionLoan D, if the ~~Borrower requests that~~ same occurs during the ~~Requisite Lenders consent~~ third year following the execution of Consolidated Amendment No. 2 to ~~the purchase or acquisition of, or investment in, any Person which would not otherwise be permitted by the provisions of~~ this Loan Agreement, in order to compensate Lender for its reliance expenses and ~~the Requisite Lenders refuse to agree and consent to any such purchase, acquisition or investment, the Borrower may, at its option, prepay all~~ loss of ~~the Obligations in full and terminate all of the Commitments and shall have no obligation to pay an Early Termination Fee in connection with any such prepayment and termination; provided,~~ anticipated profits. It is acknowledged that (i) all Letters of Credit and all Bond Letters of Credit are terminated or otherwise secured by the issuance of one or more back-to-back letters of credit from an issuer and containing terms reasonably acceptable to the Agent, (ii) all Obligations are paid in full, (iii) all Commitments are terminated, and (iv) to the extent the Borrower intends to finance such purchase, acquisition or investment, any one of the Lenders have not agreed to provide such financing after having been first offered the opportunity by the Borrower to provide such financing substantially on the same terms and conditions as are actually proposed to the Borrower from another lender or financial institution. A Lender shall be deemed to have so declined to provide the requested financing for the proposed acquisition, purchase or other investment unless such Lender has otherwise notified the Borrower in writing within fifteen (15) days of its receipt of all proposed material terms and conditions of the proposed acquisition, purchase or investment and any requested financing that such Lender wishes to participate in such financing. The Lenders understand and agree that the Borrower shall be required only to furnish to the Agent and the Lenders a term sheet summarizing the proposed terms for such financing to be prepared by the Borrower based on actual terms proposed by such other lender or financial institution, and that neither the Borrower nor any such other lender or financial institution shall have any obligation to furnish to the Agent or the Lenders copies of actual commitments, proposals or correspondence from such other lender or financial institution or independent verification of any such proposed terms. Payment of all or any portion of the Obligations relating to the Revolving Loan and/or the Term Loans and/or termination or reduction of any of the Commitments, in whole or in part, by or on behalf of the Borrower, by court order or otherwise, following and as a result of the institution of any bankruptcy proceeding by or against the Borrower, this fee shall be deemed to be liquidated damages for loss of a ~~prepayment~~ bargain and not a penalty and the same is acknowledged to be an integral part of the ~~Revolving~~ consideration for Lender to execute Consolidated Amendment No. 2 to this Loan Agreement; provided, however, that such fee will not be due and payable in the ~~Term Loans, and/or termination or reduction~~ event that the Borrowers make the foregoing prepayments exclusively from funds generated from a sale of ~~the Commitments, as appropriate, subject to payment of the Early Termination Fee provided in this subsection if any or~~ substantially all of the ~~Obligations are actually paid and/or any or all~~ assets of the ~~Commitments are terminated~~ Borrowers or ~~reduced at any time during the periods set forth above. All Early Termination Fees shall be paid to the Agent for the ratable benefit~~ a sale of the ~~Lenders~~controlling interest in the voting securities in the Borrowers or if the outstanding borrowings under this Agreement are replaced by borrowings under a new credit facility granted by Lender to a borrower who is affiliated with either Borrower or the General Partner of either Borrower."

Appears in 1 contract

Samples: Credit Facility and Security Agreement (Goodman Conveyor Co)

Early Termination Fee. In the event of that the ~~termination of the Revolving Credit Commitments~~Termination Date occurs, ~~the Borrower shall pay a fee~~ for any reason, on or prior to the Agent for the benefit of the Lenders ratably (the "Early Termination Fee"), equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the Total Revolving Credit including, day preceding Committed Amount the first anniversary date of the Closing Date First anniversary date 1% of the Total Revolving Credit of the Closing Date, Committed Amount through and including, the day preceding the second anniversary ~~date~~ of the ~~Closing Date Second~~ Third Amendment Effective Date, or in the event that the Borrowers reduce (but do not terminate) the Aggregate Commitments by an amount in excess of $5,000,000 on or prior to the second anniversary ~~date 1/2%~~ of the ~~Total Revolving of the Closing~~ Third Amendment Effective Date, ~~Credit Committed Amount through and including,~~ the ~~day preceding the third anniversary date of the Closing Date In the event of a partial reduction of the Revolving Credit Commitments, the Borrower~~ Borrowers shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount of the including, day preceding Revolving Credit Optional the first anniversary date Reduction of the Closing Date First anniversary date 1% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the third anniversary date In the event the Term Loans are refinanced or replaced with the proceeds of Indebtedness for Borrowed Money, in whole or in part, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount prepaid including, day preceding the first anniversary date of the Closing Date First anniversary date 1% of the amount prepaid of the Closing Date, through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount prepaid of the Closing Date, through and including, the day preceding the third anniversary date Notwithstanding the foregoing, the Borrower shall not be required to pay the Early Termination Fee in connection with such a refinancing or replacement of the Term Loans and the termination or partial reduction of the Revolving Credit Commitments from the proceeds of a public offering of Securities by the Borrower or the Parent. Nothing contained in this Section shall be deemed a waiver by the Agent or any Lender of any Default or Event of Default which results from any such public offering of Securities by the Borrower and/or the closing of a purchase, acquisition or investment otherwise prohibited by the provisions of this Agreement, which does not result in a prepayment of all Obligations and a termination of all Letters of Credit, all Bond Letters of Credit and Commitments. In addition, if the Borrower requests that the Requisite Lenders consent to the purchase or acquisition of, or investment in, any Person which would not otherwise be permitted by the provisions of this Agreement, and the Requisite Lenders refuse to agree and consent to any such purchase, acquisition or investment, the Borrower may, at its option, prepay all of the Obligations in full and terminate all of the Commitments and shall have no obligation to pay an Early Termination Fee in connection with any such prepayment and termination; provided, that (i) all Letters of Credit and all Bond Letters of Credit are terminated or otherwise secured by the issuance of one or more back-to-back letters of credit from an issuer and containing terms reasonably acceptable to the Administrative Agent, (ii) all Obligations are paid in full, (iii) all Commitments are terminated, and (iv) to the extent the Borrower intends to finance such purchase, acquisition or investment, any one of the Lenders have not agreed to provide such financing after having been first offered the opportunity by the Borrower to provide such financing substantially on the same terms and conditions as are actually proposed to the Borrower from another lender or financial institution. A Lender shall be deemed to have so declined to provide the requested financing for the proposed acquisition, purchase or other investment unless such Lender has otherwise notified the Borrower in writing within fifteen (15) days of its receipt of all proposed material terms and conditions of the proposed acquisition, purchase or investment and any requested financing that such Lender wishes to participate in such financing. The Lenders understand and agree that the Borrower shall be required only to furnish to the Agent and the Lenders a term sheet summarizing the proposed terms for such financing to be prepared by the Borrower based on actual terms proposed by such other lender or financial institution, and that neither the Borrower nor any such other lender or financial institution shall have any obligation to furnish to the Agent or the Lenders copies of actual commitments, proposals or correspondence from such other lender or financial institution or independent verification of any such proposed terms. Payment of all or any portion of the Obligations relating to the Revolving Loan and/or the Term Loans and/or termination or reduction of any of the Commitments, in whole or in part, by or on behalf of the Borrower, by court order or otherwise, following and as a result of the institution of any bankruptcy proceeding by or against the Borrower, shall be deemed to be a prepayment of the Revolving Loan and the Term Loans, and/or termination or reduction of the Commitments, as appropriate, subject to payment of the Early Termination Fee provided in this subsection if any or all of the Obligations are actually paid and/or any or all of the Commitments are terminated or reduced at any time during the periods set forth above. All Early Termination Fees shall be paid to the Agent for the ratable benefit of the Lenders, a fee (the “Early Termination Fee”) in respect of amounts which are or become payable by reason thereof equal to the following: (i) one percent (1.00%) of (x) in the case of the occurrence of the Termination Date, the Aggregate Commitments then in effect (without regard to any termination thereof) or (y) in the case of a reduction of the Aggregate Commitments, the amount of such reduction in the Aggregate Commitments, as applicable, if the Termination Date or reduction shall occur at any time on or prior to the first anniversary of the Third Amendment Effective Date; and (ii) one-half of one percent (0.50%) of (x) in the case of the occurrence of the Termination Date, the Aggregate Commitments then in effect (without regard to any termination thereof) or (y) in the case of a reduction of the Aggregate Commitments, the amount of such reduction in the Aggregate Commitments, as applicable, if the Termination Date or reduction shall occur at any time after the first anniversary of the Third Amendment Effective Date but on or prior to the second anniversary of the Third Amendment Effective Date. All parties to this Agreement agree and acknowledge that the Lenders will have suffered damages on account of the early termination of this Agreement or any portion of the Commitments and that, in view of the difficulty in ascertaining the amount of such damages, the Early Termination Fee constitutes reasonable compensation and liquidated damages to compensate the Lenders on account thereof.

Appears in 1 contract

Samples: Credit Agreement (Hamilton Beach Brands Holding Co)

Early Termination Fee. In the event of that the ~~termination of~~ Termination Date occurs, for any reason, prior to the ~~Revolving Credit Commitments~~Maturity Date, or in the event that the Borrowers elect to permanently reduce the Aggregate Commitments pursuant to Section 2.06 hereof, the Borrower shall pay a fee to the Agent for the benefit of the Lenders ratably (the "Early Termination Fee"), equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the Total Revolving Credit including, day preceding Committed Amount the first anniversary date of the Closing Date First anniversary date 1% of the Total Revolving Credit of the Closing Date, Committed Amount through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the Total Revolving of the Closing Date, Credit Committed Amount through and including, the day preceding the third anniversary date of the Closing Date In the event of a partial reduction of the Revolving Credit Commitments, the Borrower Borrowers shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount of the including, day preceding Revolving Credit Optional the first anniversary date Reduction of the Closing Date First anniversary date 1% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the third anniversary date In the event the Term Loans are refinanced or replaced with the proceeds of Indebtedness for Borrowed Money, in whole or in part, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount prepaid including, day preceding the first anniversary date of the Closing Date First anniversary date 1% of the amount prepaid of the Closing Date, through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount prepaid of the Closing Date, through and including, the day preceding the third anniversary date Notwithstanding the foregoing, the Borrower shall not be required to pay the Early Termination Fee in connection with such a refinancing or replacement of the Term Loans and the termination or partial reduction of the Revolving Credit Commitments from the proceeds of a public offering of Securities by the Borrower or the Parent. Nothing contained in this Section shall be deemed a waiver by the Agent or any Lender of any Default or Event of Default which results from any such public offering of Securities by the Borrower and/or the closing of a purchase, acquisition or investment otherwise prohibited by the provisions of this Agreement, which does not result in a prepayment of all Obligations and a termination of all Letters of Credit, all Bond Letters of Credit and Commitments. In addition, if the Borrower requests that the Requisite Lenders consent to the purchase or acquisition of, or investment in, any Person which would not otherwise be permitted by the provisions of this Agreement, and the Requisite Lenders refuse to agree and consent to any such purchase, acquisition or investment, the Borrower may, at its option, prepay all of the Obligations in full and terminate all of the Commitments and shall have no obligation to pay an Early Termination Fee in connection with any such prepayment and termination; provided, that (i) all Letters of Credit and all Bond Letters of Credit are terminated or otherwise secured by the issuance of one or more back-to-back letters of credit from an issuer and containing terms reasonably acceptable to the Administrative Agent, (ii) all Obligations are paid in full, (iii) all Commitments are terminated, and (iv) to the extent the Borrower intends to finance such purchase, acquisition or investment, any one of the Lenders have not agreed to provide such financing after having been first offered the opportunity by the Borrower to provide such financing substantially on the same terms and conditions as are actually proposed to the Borrower from another lender or financial institution. A Lender shall be deemed to have so declined to provide the requested financing for the proposed acquisition, purchase or other investment unless such Lender has otherwise notified the Borrower in writing within fifteen (15) days of its receipt of all proposed material terms and conditions of the proposed acquisition, purchase or investment and any requested financing that such Lender wishes to participate in such financing. The Lenders understand and agree that the Borrower shall be required only to furnish to the Agent and the Lenders a term sheet summarizing the proposed terms for such financing to be prepared by the Borrower based on actual terms proposed by such other lender or financial institution, and that neither the Borrower nor any such other lender or financial institution shall have any obligation to furnish to the Agent or the Lenders copies of actual commitments, proposals or correspondence from such other lender or financial institution or independent verification of any such proposed terms. Payment of all or any portion of the Obligations relating to the Revolving Loan and/or the Term Loans and/or termination or reduction of any of the Commitments, in whole or in part, by or on behalf of the Borrower, by court order or otherwise, following and as a result of the institution of any bankruptcy proceeding by or against the Borrower, shall be deemed to be a prepayment of the Revolving Loan and the Term Loans, and/or termination or reduction of the Commitments, as appropriate, subject to payment of the Early Termination Fee provided in this subsection if any or all of the Obligations are actually paid and/or any or all of the Commitments are terminated or reduced at any time during the periods set forth above. All Early Termination Fees shall be paid to the Agent for the ratable benefit of the Lenders, a fee (the “Early Termination Fee”) in respect of amounts which are or become payable by reason thereof equal to the following: (i) one and one-half percent (1.50%) of the Aggregate Commitments then in effect if the Termination Date or such reduction of the Aggregate Commitments shall occur at any time on or before the first anniversary of the Closing Date; (ii) one percent (1.00%) of the Aggregate Commitments then in effect if the Termination Date or such reduction of the Aggregate Commitments shall occur at any time on or after first anniversary of the Closing Date but prior to the second anniversary of the Closing Date; and (iii) one-half of one percent (0.50%) of the Aggregate Commitments then in effect if the Termination Date or such reduction of the Aggregate Commitments shall occur at any time on or after second anniversary of the Closing Date but prior to the third anniversary of the Closing Date. There will be no Early Termination Fee due after the third anniversary of the Closing Date. All parties to this Agreement agree and acknowledge that the Lenders will have suffered damages on account of the early termination of this Agreement or the permanent reduction of the Aggregate Commitments and that, in view of the difficulty in ascertaining the amount of such damages, the Early Termination Fee constitutes reasonable compensation and liquidated damages to compensate the Lenders on account thereof.

Appears in 1 contract

Samples: Credit Agreement (Tuesday Morning Corp/De)

Early Termination Fee. In the event (x) the Borrowers prepay any portion of the ~~termination~~ Term Loan or Delayed Draw Term Loan pursuant to Sections 2.06(a) or (d) hereof, or (y) terminate or reduce the Revolving Commitments pursuant to Section 2.06(a) or Section 2.07(a) hereof, or (z) the Termination Date occurs for any reason (except pursuant to clause (i) thereof), including the acceleration of the ~~Revolving Credit Commitments~~Obligations, then on the date of any such prepayment, termination or reduction, the ~~Borrower~~ Borrowers shall pay ~~a fee~~ to the ~~Agent~~ Agent, for the ratable benefit of the ~~Lenders ratably~~ applicable Lenders, a fee (the "“Early Termination Fee~~"),~~ ”) equal to ~~following amount at~~ the ~~following times~~following: ~~PERIOD EARLY TERMINATION FEE Closing Date,~~ (i) the greater of (A) the difference between (i) the maximum total interest which would be earned on the Obligations (or portion thereof prepaid or due) through and ~~2% of the Total Revolving Credit including, day preceding Committed Amount~~ including the first anniversary ~~date~~ of the Closing Date ~~First anniversary~~ (assuming no Revolving Loans have been drawn if no such Loans are outstanding on the prepayment date 1% and if Revolving Loans have been drawn, assuming the amount outstanding on the date of prepayment had remained outstanding through such anniversary), and (ii) the total interest actually paid by the Borrowers to the Lenders on the Obligations (or portion thereof prepaid) prior to the date of prepayment or due date of such Obligations (or portion thereof prepaid or due) and (B) three percent (3%) of the ~~Total Revolving Credit~~ Loans being prepaid (or required to be prepaid) and Commitments being reduced or terminated on such date, in each case if such prepayment, acceleration, termination or reduction shall occur at any time prior to the first anniversary of the Closing Date; (ii) two percent (2%) of the sum of the Loans being prepaid (or required to be prepaid) and Commitments being reduced or terminated on such date if such prepayment, ~~Committed Amount through and including~~acceleration, termination or reduction shall occur on or after the ~~day preceding the second~~ first anniversary ~~date~~ of the Closing Date ~~Second~~ but prior to the second anniversary ~~date 1/2% of the Total Revolving~~ of the Closing Date; and (iii) 0% thereafter; provided, ~~Credit Committed Amount through and including~~that, so long as no Event of Default then exists or would result therefrom, the day preceding the third anniversary date of the Closing Date In the event of a partial reduction of the Revolving Credit Commitments, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount of the including, day preceding Revolving Credit Optional the first anniversary date Reduction of the Closing Date First anniversary date 1% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the third anniversary date In the event the Term Loans are refinanced or replaced with the proceeds of Indebtedness for Borrowed Money, in whole or in part, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount prepaid including, day preceding the first anniversary date of the Closing Date First anniversary date 1% of the amount prepaid of the Closing Date, through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount prepaid of the Closing Date, through and including, the day preceding the third anniversary date Notwithstanding the foregoing, the Borrower Borrowers shall not be required to pay ~~the~~ an Early Termination Fee with respect to a portion of the Term Loan not in excess of $2,000,000 that is prepaid by the Borrowers pursuant to Section 2.06(a) to the extent that such prepayment is made within ninety (90) days of the Closing Date and in connection with ~~such a refinancing or replacement of~~ the ~~Term Loans and the termination or partial reduction~~ syndication of the Revolving Credit Commitments from the proceeds of a public offering of Securities by the Borrower or the Parent. Nothing contained in this Section shall be deemed a waiver by the Agent or any Lender of any Default or Event of Default which results from any such public offering of Securities by the Borrower and/or the closing of a purchase, acquisition or investment otherwise prohibited by the provisions of this Agreement, which does not result in a prepayment of all Obligations and a termination of all Letters of Credit, all Bond Letters of Credit and Commitments. In addition, if the Borrower requests that the Requisite Lenders consent to the purchase or acquisition of, or investment in, any Person which would not otherwise be permitted by the provisions of this Agreement, and the Requisite Lenders refuse to agree and consent to any such purchase, acquisition or investment, the Borrower may, at its option, prepay all of the Obligations in full and terminate all of the Commitments and shall have no obligation to pay an Early Termination Fee in connection with any such prepayment and termination; provided, that (i) all Letters of Credit and all Bond Letters of Credit are terminated or otherwise secured by the issuance of one or more back-to-back letters of credit from an issuer and containing Facility under terms ~~reasonably acceptable~~ satisfactory to the Agent~~, (ii) all Obligations are paid in full, (iii) all Commitments are terminated,~~ . All parties to this Agreement agree and ~~(iv) to~~ acknowledge that the ~~extent the Borrower intends to finance such purchase, acquisition or investment, any one~~ Lenders will have suffered damages on account of the Lenders have not agreed to provide such financing after having been first offered the opportunity by the Borrower to provide such financing substantially on the same terms and conditions as are actually proposed to the Borrower from another lender or financial institution. A Lender shall be deemed to have so declined to provide the requested financing for the proposed acquisition, purchase or other investment unless such Lender has otherwise notified the Borrower in writing within fifteen (15) days of its receipt of all proposed material terms and conditions early prepayment of the ~~proposed acquisition~~Loans, purchase or investment and any requested financing that such Lender wishes to participate in such financing. The Lenders understand and agree that the Borrower shall be required only to furnish to the Agent and the Lenders a term sheet summarizing the proposed terms for such financing to be prepared by the Borrower based on actual terms proposed by such other lender or financial institution, and that neither the Borrower nor any such other lender or financial institution shall have any obligation to furnish to the Agent or the Lenders copies early termination of ~~actual commitments, proposals or correspondence from such other lender or financial institution or independent verification of any such proposed terms. Payment of all~~ this Agreement or any portion of the ~~Obligations relating to the Revolving Loan and/or the Term Loans and/or termination or reduction of any~~ Commitments and that, in view of the ~~Commitments~~difficulty in ascertaining the amount of such damages, in whole or in part, by or on behalf of the Borrower, by court order or otherwise, following and as a result of the institution of any bankruptcy proceeding by or against the Borrower, shall be deemed to be a prepayment of the Revolving Loan and the Term Loans, and/or termination or reduction of the Commitments, as appropriate, subject to payment of the Early Termination Fee ~~provided in this subsection if any or all of~~ constitutes reasonable compensation and liquidated damages to compensate the Obligations are actually paid and/or any or all of the Commitments are terminated or reduced at any time during the periods set forth above. All Early Termination Fees shall be paid to the Agent for the ratable benefit of the LendersLenders on account thereof.

Appears in 1 contract

Samples: Credit Agreement (Body Central Corp)

Early Termination Fee. In the event prior to the fourth anniversary of the ~~termination~~ Third Amendment Effective Date, whether before or after an Event of Default or acceleration of the ~~Revolving Credit Commitments~~Obligations, the ~~Borrower shall pay a fee~~ Borrowers prepay or are otherwise required to ~~the Agent for the benefit~~ prepay all or any part of the Lenders ratably (the "Early Termination Fee"), equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the Total Revolving Credit including, day preceding Committed Amount the first anniversary date of the Closing Date First anniversary date 1% of the Total Revolving Credit of the Closing Date, Committed Amount through and includingTerm Loan for any reason, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the Total Revolving of the Closing Date, Credit Committed Amount through and including, the day preceding the third anniversary date of the Closing Date In the event of a partial reduction of the Revolving Credit Commitments, the Borrower Borrowers shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount of the including, day preceding Revolving Credit Optional the first anniversary date Reduction of the Closing Date First anniversary date 1% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the third anniversary date In the event the Term Loans are refinanced or replaced with the proceeds of Indebtedness for Borrowed Money, in whole or in part, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount prepaid including, day preceding the first anniversary date of the Closing Date First anniversary date 1% of the amount prepaid of the Closing Date, through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount prepaid of the Closing Date, through and including, the day preceding the third anniversary date Notwithstanding the foregoing, the Borrower shall not be required to pay the Early Termination Fee in connection with such a refinancing or replacement of the Term Loans and the termination or partial reduction of the Revolving Credit Commitments from the proceeds of a public offering of Securities by the Borrower or the Parent. Nothing contained in this Section shall be deemed a waiver by the Agent or any Lender of any Default or Event of Default which results from any such public offering of Securities by the Borrower and/or the closing of a purchase, acquisition or investment otherwise prohibited by the provisions of this Agreement, which does not result in a prepayment of all Obligations and a termination of all Letters of Credit, all Bond Letters of Credit and Commitments. In addition, if the Borrower requests that the Requisite Lenders consent to the purchase or acquisition of, or investment in, any Person which would not otherwise be permitted by the provisions of this Agreement, and the Requisite Lenders refuse to agree and consent to any such purchase, acquisition or investment, the Borrower may, at its option, prepay all of the Obligations in full and terminate all of the Commitments and shall have no obligation to pay an Early Termination Fee in connection with any such prepayment and termination; provided, that (i) all Letters of Credit and all Bond Letters of Credit are terminated or otherwise secured by the issuance of one or more back-to-back letters of credit from an issuer and containing terms reasonably acceptable to the Administrative Agent, (ii) all Obligations are paid in full, (iii) all Commitments are terminated, and (iv) to the extent the Borrower intends to finance such purchase, acquisition or investment, any one of the Lenders have not agreed to provide such financing after having been first offered the opportunity by the Borrower to provide such financing substantially on the same terms and conditions as are actually proposed to the Borrower from another lender or financial institution. A Lender shall be deemed to have so declined to provide the requested financing for the proposed acquisition, purchase or other investment unless such Lender has otherwise notified the Borrower in writing within fifteen (15) days of its receipt of all proposed material terms and conditions of the proposed acquisition, purchase or investment and any requested financing that such Lender wishes to participate in such financing. The Lenders understand and agree that the Borrower shall be required only to furnish to the Agent and the Lenders a term sheet summarizing the proposed terms for such financing to be prepared by the Borrower based on actual terms proposed by such other lender or financial institution, and that neither the Borrower nor any such other lender or financial institution shall have any obligation to furnish to the Agent or the Lenders copies of actual commitments, proposals or correspondence from such other lender or financial institution or independent verification of any such proposed terms. Payment of all or any portion of the Obligations relating to the Revolving Loan and/or the Term Loans and/or termination or reduction of any of the Commitments, in whole or in part, by or on behalf of the Borrower, by court order or otherwise, following and as a result of the institution of any bankruptcy proceeding by or against the Borrower, shall be deemed to be a prepayment of the Revolving Loan and the Term Loans, and/or termination or reduction of the Commitments, as appropriate, subject to payment of the Early Termination Fee provided in this subsection if any or all of the Obligations are actually paid and/or any or all of the Commitments are terminated or reduced at any time during the periods set forth above. All Early Termination Fees shall be paid to the Agent for the ratable benefit of the Lenders, a fee (the “Early Termination Fee”) in respect of amounts which are prepaid or are or become payable by reason thereof equal to (a) if such prepayment occurs on or prior to the first anniversary of the Third Amendment Effective Date, four percent (4.0%) of the amounts so prepaid, (b) if such prepayment occurs after the first anniversary of the Third Amendment Effective Date and on or prior to the second anniversary of the Third Amendment Effective Date, two percent (2.0%) of the amounts so prepaid and (C) if such prepayment occurs after the second anniversary of the Third Amendment Effective Date and on or prior to the third anniversary of the Third Amendment Effective Date, one percent (1.0%) of the amounts so prepaid. For greater certainty, if any such prepayment occurs after the third anniversary of the Third Amendment Effective Date, no Early Termination Fee or other fee arising solely on account of prepayment of the Term Loan shall be payable. All parties to this Agreement agree and acknowledge that (i) the Lenders will have suffered damages on account of the early prepayment of the Term Loans, whether before or after an Event of Default or acceleration of the Obligations, and that, in view of the difficulty in ascertaining the amount of such damages, the Early Termination Fee constitutes reasonable compensation and liquidated damages to compensate the Lenders on account thereof and (ii) the Early Termination Fee constitutes neither a penalty for such prepayment nor unaccrued interest on any Term Loan.

Appears in 1 contract

Samples: Term Loan and Security Agreement (Birks Group Inc.)

Early Termination Fee. In the event that the Borrower prepays or repays all or part of the ~~termination~~ Loans pursuant to Section 2.04 (unless such prepayment or repayment is required to be made (and not otherwise waived by the Required Lenders) pursuant to Section 2.04(b), 2.04(c), or 2.04(d)) or as a result of an acceleration of the ~~Revolving Credit Commitments~~Loans pursuant to Section 8.02, the Borrower shall pay a fee to the Agent for the benefit of the Lenders ratably (the "Early Termination Fee"), equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the Total Revolving Credit including, day preceding Committed Amount the first anniversary date of the Closing Date First anniversary date 1% of the Total Revolving Credit of the Closing Date, Committed Amount through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the Total Revolving of the Closing Date, Credit Committed Amount through and including, the day preceding the third anniversary date of the Closing Date In the event of a partial reduction of the Revolving Credit Commitments, then the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount of the including, day preceding Revolving Credit Optional the first anniversary date Reduction of the Closing Date First anniversary date 1% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the third anniversary date In the event the Term Loans are refinanced or replaced with the proceeds of Indebtedness for Borrowed Money, in whole or in part, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount prepaid including, day preceding the first anniversary date of the Closing Date First anniversary date 1% of the amount prepaid of the Closing Date, through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount prepaid of the Closing Date, through and including, the day preceding the third anniversary date Notwithstanding the foregoing, the Borrower shall not be required to pay the Early Termination Fee in connection with such a refinancing or replacement of the Term Loans and the termination or partial reduction of the Revolving Credit Commitments from the proceeds of a public offering of Securities by the Borrower or the Parent. Nothing contained in this Section shall be deemed a waiver by the Agent or any Lender of any Default or Event of Default which results from any such public offering of Securities by the Borrower and/or the closing of a purchase, acquisition or investment otherwise prohibited by the provisions of this Agreement, which does not result in a prepayment of all Obligations and a termination of all Letters of Credit, all Bond Letters of Credit and Commitments. In addition, if the Borrower requests that the Requisite Lenders consent to the purchase or acquisition of, or investment in, any Person which would not otherwise be permitted by the provisions of this Agreement, and the Requisite Lenders refuse to agree and consent to any such purchase, acquisition or investment, the Borrower may, at its option, prepay all of the Obligations in full and terminate all of the Commitments and shall have no obligation to pay an Early Termination Fee in connection with any such prepayment and termination; provided, that (i) all Letters of Credit and all Bond Letters of Credit are terminated or otherwise secured by the issuance of one or more back-to-back letters of credit from an issuer and containing terms reasonably acceptable to the Agent, (ii) all Obligations are paid in full, (iii) all Commitments are terminated, and (iv) to the extent the Borrower intends to finance such purchase, acquisition or investment, any one of the Lenders have not agreed to provide such financing after having been first offered the opportunity by the Borrower to provide such financing substantially on the same terms and conditions as are actually proposed to the Borrower from another lender or financial institution. A Lender shall be deemed to have so declined to provide the requested financing for the proposed acquisition, purchase or other investment unless such Lender has otherwise notified the Borrower in writing within fifteen (15) days of its receipt of all proposed material terms and conditions of the proposed acquisition, purchase or investment and any requested financing that such Lender wishes to participate in such financing. The Lenders understand and agree that the Borrower shall be required only to furnish to the Agent and the Lenders a term sheet summarizing the proposed terms for such financing to be prepared by the Borrower based on actual terms proposed by such other lender or financial institution, and that neither the Borrower nor any such other lender or financial institution shall have any obligation to furnish to the Agent or the Lenders copies of actual commitments, proposals or correspondence from such other lender or financial institution or independent verification of any such proposed terms. Payment of all or any portion of the Obligations relating to the Revolving Loan and/or the Term Loans and/or termination or reduction of any of the Commitments, in whole or in part, by or on behalf of the Borrower, by court order or otherwise, following and as a result of the institution of any bankruptcy proceeding by or against the Borrower, shall be deemed to be a prepayment of the Revolving Loan and the Term Loans, and/or termination or reduction of the Commitments, as appropriate, subject to payment of the Early Termination Fee provided in this subsection if any or all of the Obligations are actually paid and/or any or all of the Commitments are terminated or reduced at any time during the periods set forth above. All Early Termination Fees shall be paid to the Agent for the ratable benefit of the Lenders, a fee (the “Early Termination Fee”) equal to (i) if such prepayment or repayment is a Permitted No-Call Prepayment of the type described in in Section 2.04(a)(i) and is made during the No Call Period, one percent (1%) of the outstanding principal amount of the Loans prepaid or repaid at such time, (ii) if such prepayment or repayment is a Permitted No-Call Prepayment of the type described in Section 2.04(a)(ii) and is made during the No Call Period, three percent (3%) of the outstanding principal amount of the Loans prepaid or repaid at such time, or (iii) for any other prepayment or repayment, (A) if such prepayment or repayment occurs on or after the eighteenth (18th) month anniversary of the Effective Date and prior to the thirtieth (30th) month anniversary of the Effective Date, three percent (3%) of the outstanding principal amount of the Loans prepaid or repaid at such time and (B) if such prepayment or repayment occurs on or after the thirtieth (30th) month anniversary of the Effective Date and prior to the forty-second (42nd) month anniversary of the Effective Date, one (1%) percent of the outstanding principal amount of the Loans prepaid or repaid at such time; provided, that if such prepayment occurs on or after the forty-second (42nd) month anniversary of the Effective Date, no Early Termination Fee shall be due and payable. All parties to this Agreement agree and acknowledge that the Lenders will have suffered damages on account of the prepayment of the Loans during such timeframe set forth in this Section 2.08(b) and that, in view of the difficulty in ascertaining the amount of such damages, the Early Termination Fee constitutes reasonable compensation and liquidated damages to compensate the Lenders on account thereof.

Appears in 1 contract

Samples: Credit Agreement (Singer Madeline Holdings, Inc.)

Early Termination Fee. In If for any reason this Agreement is terminated prior to the ~~event~~ third anniversary of the ~~termination~~ Effective Date, in view of the ~~Revolving Credit Commitments~~impracticality and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of Agent's and each Lender's lost profits as a result thereof, ~~the Borrower shall~~ Borrowers agree to pay ~~a fee~~ to ~~the Agent~~ Agent, for the benefit of Lenders, upon the ~~Lenders ratably~~ effective date of such termination, an early termination fee (~~the~~ "Early Termination Fee"), ) in the amount equal to ~~following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and~~ (i) two (2% %) percent of the Total ~~Revolving Credit including~~Loan Commitment, ~~day preceding Committed Amount~~ if such termination occurs on or prior to the ~~first~~ second anniversary ~~date~~ of the ~~Closing~~ Effective Date ~~First anniversary date~~ or (ii) one (1% %) percent of the Total ~~Revolving Credit of the Closing Date~~Loan Commitment, ~~Committed Amount through and including, the day preceding~~ if such termination occurs after the second anniversary ~~date~~ of the ~~Closing~~ Effective Date ~~Second anniversary date 1/2% of the Total Revolving of the Closing Date, Credit Committed Amount through~~ and ~~including, the day preceding~~ on or prior to the third anniversary ~~date~~ of the ~~Closing Date In the event of a partial reduction of the Revolving Credit Commitments, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an~~ Effective Date. Such Early Termination Fee ~~equal~~ shall be presumed to ~~following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of~~ be the amount of damages sustained by Agent and Lenders as a result of such early termination and Borrowers and Guarantors agree that it is reasonable under the circumstances currently existing (including, day preceding Revolving Credit Optional the first anniversary date Reduction of the Closing Date First anniversary date 1% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the third anniversary date In the event the Term Loans are refinanced or replaced with the proceeds of Indebtedness for Borrowed Money, in whole or in partbut not limited to, the ~~Borrower~~ borrowings that are reasonably expected by Borrowers hereunder and the interest, fees and other charges that are reasonably expected to be received by Agent and Lenders pursuant hereto). In addition, Agent and Lenders shall ~~pay~~ be entitled to ~~the Agent for the benefit of the Lenders ratably, an~~ such Early Termination Fee ~~equal~~ upon the occurrence of any Event of Default described in Sections 8.01(f) and 8.01(g) hereof, even if Agent and Lenders do not exercise the right to ~~following amount~~ terminate this Agreement, but elect, at their option, to provide financing to any Borrower or permit the ~~following times: PERIOD EARLY TERMINATION FEE Closing Date~~use of cash collateral under the United States Bankruptcy Code. The Early Termination Fee provided for in this Section 2.06(f) shall be deemed included in the Obligations. Notwithstanding that prepayment shall be made on the termination of this Agreement, through and 2% of the amount prepaid including, day preceding the first anniversary date of the Closing Date First anniversary date 1% of the amount prepaid of the Closing Date, through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount prepaid of the Closing Date, through and including, the day preceding the third anniversary date Notwithstanding the foregoing, the Borrower no Prepayment Fee shall ~~not~~ be required with respect to such prepayments, but instead Borrowers shall pay the Early Termination Fee in connection with such a refinancing or replacement of the Term Loans and the termination or partial reduction of the Revolving Credit Commitments from the proceeds of a public offering of Securities by the Borrower or the ParentFee. ~~Nothing contained in~~ If for any reason this Section shall be deemed a waiver by the Agent or any Lender of any Default or Event of Default which results from any such public offering of Securities by the Borrower and/or the closing of a purchase, acquisition or investment otherwise prohibited by the provisions of this Agreement, which does not result in a prepayment of all Obligations and a termination of all Letters of Credit, all Bond Letters of Credit and Commitments. In addition, if the Borrower requests that the Requisite Lenders consent Agreement is terminated prior to the ~~purchase or acquisition of~~Final Maturity Date, ~~or investment in, any Person which would not otherwise be permitted by the provisions of this Agreement,~~ Borrowers and the Requisite Lenders refuse to agree and consent to any such purchase, acquisition or investment, the Borrower may, at its option, prepay all of the Obligations in full and terminate all of the Commitments and shall have no obligation to pay an Early Termination Fee in connection with any such prepayment and termination; provided, that (i) all Letters of Credit and all Bond Letters of Credit are terminated or otherwise secured by the issuance of one or more back-to-back letters of credit from an issuer and containing terms reasonably acceptable to the Agent, (ii) all Obligations are paid in full, (iii) all Commitments are terminated, and (iv) to the extent the Borrower intends to finance such purchase, acquisition or investment, any one of the Lenders have not agreed to provide such financing after having been first offered the opportunity by the Borrower to provide such financing substantially on the same terms and conditions as are actually proposed to the Borrower from another lender or financial institution. A Lender shall be deemed to have so declined to provide the requested financing for the proposed acquisition, purchase or other investment unless such Lender has otherwise notified the Borrower in writing within fifteen (15) days of its receipt of all proposed material terms and conditions of the proposed acquisition, purchase or investment and any requested financing that such Lender wishes to participate in such financing. The Lenders understand and Guarantors agree that the ~~Borrower~~ Obligations shall be required only to furnish to the Agent and the Lenders a term sheet summarizing the proposed terms for such financing to be prepared by the Borrower based on actual terms proposed by such other lender or financial institution, and that neither the Borrower nor any such other lender or financial institution shall have any obligation to furnish to the Agent or the Lenders copies of actual commitments, proposals or correspondence from such other lender or financial institution or independent verification of any such proposed terms. Payment of all or any portion of the Obligations relating to the Revolving Loan and/or the Term Loans and/or termination or reduction of any of the Commitments, Paid in whole or in part, by or on behalf of the Borrower, by court order or otherwise, following and as a result of the institution of any bankruptcy proceeding by or against the Borrower, shall be deemed to be a prepayment of the Revolving Loan and the Term Loans, and/or termination or reduction of the Commitments, as appropriate, subject to payment of the Early Termination Fee provided in this subsection if any or all of the Obligations are actually paid and/or any or all of the Commitments are terminated or reduced at any time during the periods set forth above. All Early Termination Fees shall be paid to the Agent for the ratable benefit of the LendersFull.

Appears in 1 contract

Samples: Loan Agreement (Aerobic Creations, Inc.)

Early Termination Fee. In the event of that (i) the ~~termination of~~ Termination Date occurs, for any reason, prior to the ~~Revolving Credit Commitments~~Maturity Date or (ii) the Borrowers reduce (but do not terminate) the Aggregate Commitments prior to the Maturity Date, the Borrower shall pay a fee to the Agent for the benefit of the Lenders ratably (the "Early Termination Fee"), equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the Total Revolving Credit including, day preceding Committed Amount the first anniversary date of the Closing Date First anniversary date 1% of the Total Revolving Credit of the Closing Date, Committed Amount through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the Total Revolving of the Closing Date, Credit Committed Amount through and including, the day preceding the third anniversary date of the Closing Date In the event of a partial reduction of the Revolving Credit Commitments, the Borrower Borrowers shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount of the including, day preceding Revolving Credit Optional the first anniversary date Reduction of the Closing Date First anniversary date 1% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the third anniversary date In the event the Term Loans are refinanced or replaced with the proceeds of Indebtedness for Borrowed Money, in whole or in part, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount prepaid including, day preceding the first anniversary date of the Closing Date First anniversary date 1% of the amount prepaid of the Closing Date, through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount prepaid of the Closing Date, through and including, the day preceding the third anniversary date Notwithstanding the foregoing, the Borrower shall not be required to pay the Early Termination Fee in connection with such a refinancing or replacement of the Term Loans and the termination or partial reduction of the Revolving Credit Commitments from the proceeds of a public offering of Securities by the Borrower or the Parent. Nothing contained in this Section shall be deemed a waiver by the Agent or any Lender of any Default or Event of Default which results from any such public offering of Securities by the Borrower and/or the closing of a purchase, acquisition or investment otherwise prohibited by the provisions of this Agreement, which does not result in a prepayment of all Obligations and a termination of all Letters of Credit, all Bond Letters of Credit and Commitments. In addition, if the Borrower requests that the Requisite Lenders consent to the purchase or acquisition of, or investment in, any Person which would not otherwise be permitted by the provisions of this Agreement, and the Requisite Lenders refuse to agree and consent to any such purchase, acquisition or investment, the Borrower may, at its option, prepay all of the Obligations in full and terminate all of the Commitments and shall have no obligation to pay an Early Termination Fee in connection with any such prepayment and termination; provided, that (i) all Letters of Credit and all Bond Letters of Credit are terminated or otherwise secured by the issuance of one or more back-to-back letters of credit from an issuer and containing terms reasonably acceptable to the Agent, (ii) all Obligations are paid in full, (iii) all Commitments are terminated, and (iv) to the extent the Borrower intends to finance such purchase, acquisition or investment, any one of the Lenders have not agreed to provide such financing after having been first offered the opportunity by the Borrower to provide such financing substantially on the same terms and conditions as are actually proposed to the Borrower from another lender or financial institution. A Lender shall be deemed to have so declined to provide the requested financing for the proposed acquisition, purchase or other investment unless such Lender has otherwise notified the Borrower in writing within fifteen (15) days of its receipt of all proposed material terms and conditions of the proposed acquisition, purchase or investment and any requested financing that such Lender wishes to participate in such financing. The Lenders understand and agree that the Borrower shall be required only to furnish to the Agent and the Lenders a term sheet summarizing the proposed terms for such financing to be prepared by the Borrower based on actual terms proposed by such other lender or financial institution, and that neither the Borrower nor any such other lender or financial institution shall have any obligation to furnish to the Agent or the Lenders copies of actual commitments, proposals or correspondence from such other lender or financial institution or independent verification of any such proposed terms. Payment of all or any portion of the Obligations relating to the Revolving Loan and/or the Term Loans and/or termination or reduction of any of the Commitments, in whole or in part, by or on behalf of the Borrower, by court order or otherwise, following and as a result of the institution of any bankruptcy proceeding by or against the Borrower, shall be deemed to be a prepayment of the Revolving Loan and the Term Loans, and/or termination or reduction of the Commitments, as appropriate, subject to payment of the Early Termination Fee provided in this subsection if any or all of the Obligations are actually paid and/or any or all of the Commitments are terminated or reduced at any time during the periods set forth above. All Early Termination Fees shall be paid to the Agent for the ratable benefit of the Lenders, a fee (the “Early Termination Fee”) equal to the following: (x) two percent (2%) of (I) in the event the Termination Date occurs, the Commitments then in effect (without regard to any termination thereof) or (II) in the event that the Borrowers reduce the Aggregate Commitments, the amount of such reduction, if the Termination Date, payment or reduction shall occur at any time on or before the first anniversary of the Closing Date; (y) one percent (1%) of (I) in the event the Termination Date occurs, the Commitments then in effect (without regard to any termination thereof) or (II) in the event that the Borrowers reduce the Aggregate Commitments, the amount of such reduction, if the Termination Date or reduction shall occur at any time on or after the first anniversary of the Closing Date, but prior to the second anniversary of the Closing Date; and (z) one-half of one percent (0.50%) of (I) in the event the Termination Date occurs, the Commitments then in effect (without regard to any termination thereof) or (II) in the event that the Borrowers reduce the Aggregate Commitments, the amount of such reduction, if the Termination Date shall occur at any time on or after the second anniversary of the Closing Date but prior to the third anniversary of the Closing Date. All parties to this Agreement agree and acknowledge that the Lenders will have suffered damages on account of the early termination of this Agreement or any portion of the Commitments and that, in view of the difficulty in ascertaining the amount of such damages, the Early Termination Fee constitutes reasonable compensation and liquidated damages to compensate the Lenders on account thereof. Notwithstanding the foregoing, during the period beginning six months prior to the Maturity Date and ending on the Maturity Date, no Early Termination Fee shall be due if the Lead Borrower provides prior written notice to Agent at least ninety (90) days prior to the applicable Termination Date.

Appears in 1 contract

Samples: Credit Agreement (Vertex Energy Inc.)

Early Termination Fee. In the event that the Borrower prepays or repays all or part of the ~~termination~~ Loans pursuant to Section 2.04 (unless such prepayment or repayment is required to be made (and not otherwise waived by the Required Lenders) pursuant to Section 2.04(b), 2.04(c), 2.04(d) or 2.06(a)) or as a result of an acceleration of the ~~Revolving Credit Commitments~~Loans pursuant to Section 8.02, the Borrower shall pay a fee to the Agent for the benefit of the Lenders ratably (the "Early Termination Fee"), equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the Total Revolving Credit including, day preceding Committed Amount the first anniversary date of the Closing Date First anniversary date 1% of the Total Revolving Credit of the Closing Date, Committed Amount through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the Total Revolving of the Closing Date, Credit Committed Amount through and including, the day preceding the third anniversary date of the Closing Date In the event of a partial reduction of the Revolving Credit Commitments, then the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount of the including, day preceding Revolving Credit Optional the first anniversary date Reduction of the Closing Date First anniversary date 1% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the third anniversary date In the event the Term Loans are refinanced or replaced with the proceeds of Indebtedness for Borrowed Money, in whole or in part, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount prepaid including, day preceding the first anniversary date of the Closing Date First anniversary date 1% of the amount prepaid of the Closing Date, through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount prepaid of the Closing Date, through and including, the day preceding the third anniversary date Notwithstanding the foregoing, the Borrower shall not be required to pay the Early Termination Fee in connection with such a refinancing or replacement of the Term Loans and the termination or partial reduction of the Revolving Credit Commitments from the proceeds of a public offering of Securities by the Borrower or the Parent. Nothing contained in this Section shall be deemed a waiver by the Agent or any Lender of any Default or Event of Default which results from any such public offering of Securities by the Borrower and/or the closing of a purchase, acquisition or investment otherwise prohibited by the provisions of this Agreement, which does not result in a prepayment of all Obligations and a termination of all Letters of Credit, all Bond Letters of Credit and Commitments. In addition, if the Borrower requests that the Requisite Lenders consent to the purchase or acquisition of, or investment in, any Person which would not otherwise be permitted by the provisions of this Agreement, and the Requisite Lenders refuse to agree and consent to any such purchase, acquisition or investment, the Borrower may, at its option, prepay all of the Obligations in full and terminate all of the Commitments and shall have no obligation to pay an Early Termination Fee in connection with any such prepayment and termination; provided, that (i) all Letters of Credit and all Bond Letters of Credit are terminated or otherwise secured by the issuance of one or more back-to-back letters of credit from an issuer and containing terms reasonably acceptable to the Agent, (ii) all Obligations are paid in full, (iii) all Commitments are terminated, and (iv) to the extent the Borrower intends to finance such purchase, acquisition or investment, any one of the Lenders have not agreed to provide such financing after having been first offered the opportunity by the Borrower to provide such financing substantially on the same terms and conditions as are actually proposed to the Borrower from another lender or financial institution. A Lender shall be deemed to have so declined to provide the requested financing for the proposed acquisition, purchase or other investment unless such Lender has otherwise notified the Borrower in writing within fifteen (15) days of its receipt of all proposed material terms and conditions of the proposed acquisition, purchase or investment and any requested financing that such Lender wishes to participate in such financing. The Lenders understand and agree that the Borrower shall be required only to furnish to the Agent and the Lenders a term sheet summarizing the proposed terms for such financing to be prepared by the Borrower based on actual terms proposed by such other lender or financial institution, and that neither the Borrower nor any such other lender or financial institution shall have any obligation to furnish to the Agent or the Lenders copies of actual commitments, proposals or correspondence from such other lender or financial institution or independent verification of any such proposed terms. Payment of all or any portion of the Obligations relating to the Revolving Loan and/or the Term Loans and/or termination or reduction of any of the Commitments, in whole or in part, by or on behalf of the Borrower, by court order or otherwise, following and as a result of the institution of any bankruptcy proceeding by or against the Borrower, shall be deemed to be a prepayment of the Revolving Loan and the Term Loans, and/or termination or reduction of the Commitments, as appropriate, subject to payment of the Early Termination Fee provided in this subsection if any or all of the Obligations are actually paid and/or any or all of the Commitments are terminated or reduced at any time during the periods set forth above. All Early Termination Fees shall be paid to the Agent for the ratable benefit of the Lenders, a fee (the “Early Termination Fee”) equal to (i) if such prepayment or repayment occurs on or after the First Amendment Effective Date and prior to the twelfth (12th) month anniversary of the First Amendment Effective Date, three percent (3%) of the outstanding principal amount of the Loans prepaid or repaid at such time, (ii) if such prepayment or repayment occurs on or after the twelfth (12th) month anniversary of the First Amendment Effective Date and prior to the twenty-fourth (24th) month anniversary of the First Amendment Effective Date, two percent (2%) of the outstanding principal amount of the Loans prepaid or repaid at such time or (iii) if such prepayment or repayment occurs on or after the twenty-fourth (24th) month anniversary of the First Amendment Effective Date and prior to the thirty-sixth (36th) month anniversary of the First Amendment Effective Date, one percent (1%) of the outstanding principal amount of the Loans prepaid or repaid at such time; provided, that if such prepayment occurs on or after the thirty-sixth (36th) month anniversary of the First Amendment Effective Date, no Early Termination Fee shall be due and payable. All parties to this Agreement agree and acknowledge that the Lenders will have suffered damages on account of the prepayment of the Loans during such timeframe set forth in this Section 2.08(b) and that, in view of the difficulty in ascertaining the amount of such damages, the Early Termination Fee constitutes reasonable compensation and liquidated damages to compensate the Lenders on account thereof.

Appears in 1 contract

Samples: Credit Agreement (Sequential Brands Group, Inc.)

Early Termination Fee. In the event ~~of the termination of the Revolving Credit Commitments, the Borrower shall pay a fee~~ prior to the Agent for the benefit of the Lenders ratably (the "Early Termination Fee"), equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the Total Revolving Credit including, day preceding Committed Amount the first anniversary date of the Closing Date First anniversary date 1% of the Total Revolving Credit of the Closing Date, Committed Amount through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the Total Revolving of the Closing Date, Credit Committed Amount through and including, the day preceding the third anniversary ~~date~~ of the ~~Closing Date In~~ Second Amendment Effective Date, upon the ~~event~~ occurrence of ~~a partial reduction of the Revolving Credit Commitments~~an Applicable Premium Trigger Event, the ~~Borrower~~ Borrowers shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount of the including, day preceding Revolving Credit Optional the first anniversary date Reduction of the Closing Date First anniversary date 1% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the third anniversary date In the event the Term Loans are refinanced or replaced with the proceeds of Indebtedness for Borrowed Money, in whole or in part, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount prepaid including, day preceding the first anniversary date of the Closing Date First anniversary date 1% of the amount prepaid of the Closing Date, through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount prepaid of the Closing Date, through and including, the day preceding the third anniversary date Notwithstanding the foregoing, the Borrower shall not be required to pay the Early Termination Fee in connection with such a refinancing or replacement of the Term Loans and the termination or partial reduction of the Revolving Credit Commitments from the proceeds of a public offering of Securities by the Borrower or the Parent. Nothing contained in this Section shall be deemed a waiver by the Agent or any Lender of any Default or Event of Default which results from any such public offering of Securities by the Borrower and/or the closing of a purchase, acquisition or investment otherwise prohibited by the provisions of this Agreement, which does not result in a prepayment of all Obligations and a termination of all Letters of Credit, all Bond Letters of Credit and Commitments. In addition, if the Borrower requests that the Requisite Lenders consent to the purchase or acquisition of, or investment in, any Person which would not otherwise be permitted by the provisions of this Agreement, and the Requisite Lenders refuse to agree and consent to any such purchase, acquisition or investment, the Borrower may, at its option, prepay all of the Obligations in full and terminate all of the Commitments and shall have no obligation to pay an Early Termination Fee in connection with any such prepayment and termination; provided, that (i) all Letters of Credit and all Bond Letters of Credit are terminated or otherwise secured by the issuance of one or more back-to-back letters of credit from an issuer and containing terms reasonably acceptable to the Administrative Agent, (ii) all Obligations are paid in full, (iii) all Commitments are terminated, and (iv) to the extent the Borrower intends to finance such purchase, acquisition or investment, any one of the Lenders have not agreed to provide such financing after having been first offered the opportunity by the Borrower to provide such financing substantially on the same terms and conditions as are actually proposed to the Borrower from another lender or financial institution. A Lender shall be deemed to have so declined to provide the requested financing for the proposed acquisition, purchase or other investment unless such Lender has otherwise notified the Borrower in writing within fifteen (15) days of its receipt of all proposed material terms and conditions of the proposed acquisition, purchase or investment and any requested financing that such Lender wishes to participate in such financing. The Lenders understand and agree that the Borrower shall be required only to furnish to the Agent and the Lenders a term sheet summarizing the proposed terms for such financing to be prepared by the Borrower based on actual terms proposed by such other lender or financial institution, and that neither the Borrower nor any such other lender or financial institution shall have any obligation to furnish to the Agent or the Lenders copies of actual commitments, proposals or correspondence from such other lender or financial institution or independent verification of any such proposed terms. Payment of all or any portion of the Obligations relating to the Revolving Loan and/or the Term Loans and/or termination or reduction of any of the Commitments, in whole or in part, by or on behalf of the Borrower, by court order or otherwise, following and as a result of the institution of any bankruptcy proceeding by or against the Borrower, shall be deemed to be a prepayment of the Revolving Loan and the Term Loans, and/or termination or reduction of the Commitments, as appropriate, subject to payment of the Early Termination Fee provided in this subsection if any or all of the Obligations are actually paid and/or any or all of the Commitments are terminated or reduced at any time during the periods set forth above. All Early Termination Fees shall be paid to the Agent for the ratable benefit of the Lenders., the Early Termination Fee; provided, that no Early Termination Fee shall be payable in respect of any prepayment of Second Amendment Tranche B U.S. Term Loan that is prepaid (or in the case of an Applicable Premium Trigger Event occurring under clauses (ii), (iii) or (iv) of the definition thereof, deemed to be prepaid) after December 15, 2015. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, it is understood and agreed that if the Obligations are accelerated as a result of the occurrence and continuance of any Event of Default (including by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, 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. Any Early Termination Fee payable in accordance with this Section 3.2.1 shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee, 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. THE LOAN PARTIES EXPRESSLY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION. The Loan Parties expressly agree that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Early Termination Fee 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 Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 3.2.1, (E) their agreement to pay the Early Termination Fee is a material inducement to the Lenders to make the Term Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages 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 Applicable Premium Trigger Event. ”

Appears in 1 contract

Samples: Term Loan and Security Agreement (Birks Group Inc.)

Early Termination Fee. In the event that the Borrower prepays or repays all or part of the ~~termination~~ Loans pursuant to Section 2.04 (unless such prepayment or repayment is the Permitted Par Prepayment or required to be made (and not otherwise waived by the Required Lenders) pursuant to Section 2.04(b), 2.04(c), 2.04(d) or 2.06(a)) or as a result of an acceleration of the ~~Revolving Credit Commitments~~Loans pursuant to Section 8.02, the Borrower shall pay a fee to the Agent for the benefit of the Lenders ratably (the "Early Termination Fee"), equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the Total Revolving Credit including, day preceding Committed Amount the first anniversary date of the Closing Date First anniversary date 1% of the Total Revolving Credit of the Closing Date, Committed Amount through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the Total Revolving of the Closing Date, Credit Committed Amount through and including, the day preceding the third anniversary date of the Closing Date In the event of a partial reduction of the Revolving Credit Commitments, then the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount of the including, day preceding Revolving Credit Optional the first anniversary date Reduction of the Closing Date First anniversary date 1% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the third anniversary date In the event the Term Loans are refinanced or replaced with the proceeds of Indebtedness for Borrowed Money, in whole or in part, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount prepaid including, day preceding the first anniversary date of the Closing Date First anniversary date 1% of the amount prepaid of the Closing Date, through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount prepaid of the Closing Date, through and including, the day preceding the third anniversary date Notwithstanding the foregoing, the Borrower shall not be required to pay the Early Termination Fee in connection with such a refinancing or replacement of the Term Loans and the termination or partial reduction of the Revolving Credit Commitments from the proceeds of a public offering of Securities by the Borrower or the Parent. Nothing contained in this Section shall be deemed a waiver by the Agent or any Lender of any Default or Event of Default which results from any such public offering of Securities by the Borrower and/or the closing of a purchase, acquisition or investment otherwise prohibited by the provisions of this Agreement, which does not result in a prepayment of all Obligations and a termination of all Letters of Credit, all Bond Letters of Credit and Commitments. In addition, if the Borrower requests that the Requisite Lenders consent to the purchase or acquisition of, or investment in, any Person which would not otherwise be permitted by the provisions of this Agreement, and the Requisite Lenders refuse to agree and consent to any such purchase, acquisition or investment, the Borrower may, at its option, prepay all of the Obligations in full and terminate all of the Commitments and shall have no obligation to pay an Early Termination Fee in connection with any such prepayment and termination; provided, that (i) all Letters of Credit and all Bond Letters of Credit are terminated or otherwise secured by the issuance of one or more back-to-back letters of credit from an issuer and containing terms reasonably acceptable to the Agent, (ii) all Obligations are paid in full, (iii) all Commitments are terminated, and (iv) to the extent the Borrower intends to finance such purchase, acquisition or investment, any one of the Lenders have not agreed to provide such financing after having been first offered the opportunity by the Borrower to provide such financing substantially on the same terms and conditions as are actually proposed to the Borrower from another lender or financial institution. A Lender shall be deemed to have so declined to provide the requested financing for the proposed acquisition, purchase or other investment unless such Lender has otherwise notified the Borrower in writing within fifteen (15) days of its receipt of all proposed material terms and conditions of the proposed acquisition, purchase or investment and any requested financing that such Lender wishes to participate in such financing. The Lenders understand and agree that the Borrower shall be required only to furnish to the Agent and the Lenders a term sheet summarizing the proposed terms for such financing to be prepared by the Borrower based on actual terms proposed by such other lender or financial institution, and that neither the Borrower nor any such other lender or financial institution shall have any obligation to furnish to the Agent or the Lenders copies of actual commitments, proposals or correspondence from such other lender or financial institution or independent verification of any such proposed terms. Payment of all or any portion of the Obligations relating to the Revolving Loan and/or the Term Loans and/or termination or reduction of any of the Commitments, in whole or in part, by or on behalf of the Borrower, by court order or otherwise, following and as a result of the institution of any bankruptcy proceeding by or against the Borrower, shall be deemed to be a prepayment of the Revolving Loan and the Term Loans, and/or termination or reduction of the Commitments, as appropriate, subject to payment of the Early Termination Fee provided in this subsection if any or all of the Obligations are actually paid and/or any or all of the Commitments are terminated or reduced at any time during the periods set forth above. All Early Termination Fees shall be paid to the Agent for the ratable benefit of the Lenders, a fee (the “Early Termination Fee”) equal to (i) if such prepayment or repayment occurs on or after the expiration of the No Call Period and prior to the eighteenth (18th) month anniversary of the Effective Date, six percent (6%) of the outstanding principal amount of the Loans prepaid or repaid at such time, (ii) if such prepayment or repayment occurs on or after the eighteenth (18th) month anniversary of the Effective Date and prior to the thirtieth (30th) month anniversary of the Effective Date, three percent (3%) of the outstanding principal amount of the Loans prepaid or repaid at such time and (iii) if such prepayment or repayment occurs on or after the thirtieth (30th) month anniversary of the Effective Date and prior to the forty-second (42nd) month anniversary of the Effective Date, one percent (1%) of the outstanding principal amount of the Loans prepaid or repaid at such time; provided, that if such prepayment occurs on or after the forty-second (42nd) month anniversary of the Effective Date, no Early Termination Fee shall be due and payable. All parties to this Agreement agree and acknowledge that the Lenders will have suffered damages on account of the prepayment of the Loans during such timeframe set forth in this Section 2.08(b) and that, in view of the difficulty in ascertaining the amount of such damages, the Early Termination Fee constitutes reasonable compensation and liquidated damages to compensate the Lenders on account thereof.

Appears in 1 contract

Samples: Credit Agreement (Sequential Brands Group, Inc.)

Early Termination Fee. In the event of that the ~~termination of the Revolving Credit Commitments~~Termination Date occurs, ~~the Borrower shall pay a fee~~ for any reason, on or prior to the Agent for the benefit of the Lenders ratably (the "Early Termination Fee"), equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the Total Revolving Credit including, day preceding Committed Amount the first anniversary date of the Closing Date First anniversary date 1% of the Total Revolving Credit of the Closing Date, Committed Amount through and including, the day preceding the second anniversary ~~date~~ of the ~~Closing Date~~ Second Amendment Effective Date, or in the event that the Borrowers reduce (but do not terminate) the Aggregate Commitments by an amount in excess of $10,000,000 on or prior to the second anniversary ~~date 1/2%~~ of the ~~Total Revolving of the Closing~~ Second Amendment Effective Date, ~~Credit Committed Amount through and including,~~ the ~~day preceding the third anniversary date of the Closing Date In the event of a partial reduction of the Revolving Credit Commitments, the Borrower~~ Borrowers shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount of the including, day preceding Revolving Credit Optional the first anniversary date Reduction of the Closing Date First anniversary date 1% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the third anniversary date In the event the Term Loans are refinanced or replaced with the proceeds of Indebtedness for Borrowed Money, in whole or in part, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount prepaid including, day preceding the first anniversary date of the Closing Date First anniversary date 1% of the amount prepaid of the Closing Date, through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount prepaid of the Closing Date, through and including, the day preceding the third anniversary date Notwithstanding the foregoing, the Borrower shall not be required to pay the Early Termination Fee in connection with such a refinancing or replacement of the Term Loans and the termination or partial reduction of the Revolving Credit Commitments from the proceeds of a public offering of Securities by the Borrower or the Parent. Nothing contained in this Section shall be deemed a waiver by the Agent or any Lender of any Default or Event of Default which results from any such public offering of Securities by the Borrower and/or the closing of a purchase, acquisition or investment otherwise prohibited by the provisions of this Agreement, which does not result in a prepayment of all Obligations and a termination of all Letters of Credit, all Bond Letters of Credit and Commitments. In addition, if the Borrower requests that the Requisite Lenders consent to the purchase or acquisition of, or investment in, any Person which would not otherwise be permitted by the provisions of this Agreement, and the Requisite Lenders refuse to agree and consent to any such purchase, acquisition or investment, the Borrower may, at its option, prepay all of the Obligations in full and terminate all of the Commitments and shall have no obligation to pay an Early Termination Fee in connection with any such prepayment and termination; provided, that (i) all Letters of Credit and all Bond Letters of Credit are terminated or otherwise secured by the issuance of one or more back-to-back letters of credit from an issuer and containing terms reasonably acceptable to the Administrative Agent, (ii) all Obligations are paid in full, (iii) all Commitments are terminated, and (iv) to the extent the Borrower intends to finance such purchase, acquisition or investment, any one of the Lenders have not agreed to provide such financing after having been first offered the opportunity by the Borrower to provide such financing substantially on the same terms and conditions as are actually proposed to the Borrower from another lender or financial institution. A Lender shall be deemed to have so declined to provide the requested financing for the proposed acquisition, purchase or other investment unless such Lender has otherwise notified the Borrower in writing within fifteen (15) days of its receipt of all proposed material terms and conditions of the proposed acquisition, purchase or investment and any requested financing that such Lender wishes to participate in such financing. The Lenders understand and agree that the Borrower shall be required only to furnish to the Agent and the Lenders a term sheet summarizing the proposed terms for such financing to be prepared by the Borrower based on actual terms proposed by such other lender or financial institution, and that neither the Borrower nor any such other lender or financial institution shall have any obligation to furnish to the Agent or the Lenders copies of actual commitments, proposals or correspondence from such other lender or financial institution or independent verification of any such proposed terms. Payment of all or any portion of the Obligations relating to the Revolving Loan and/or the Term Loans and/or termination or reduction of any of the Commitments, in whole or in part, by or on behalf of the Borrower, by court order or otherwise, following and as a result of the institution of any bankruptcy proceeding by or against the Borrower, shall be deemed to be a prepayment of the Revolving Loan and the Term Loans, and/or termination or reduction of the Commitments, as appropriate, subject to payment of the Early Termination Fee provided in this subsection if any or all of the Obligations are actually paid and/or any or all of the Commitments are terminated or reduced at any time during the periods set forth above. All Early Termination Fees shall be paid to the Agent for the ratable benefit of the Lenders, a fee (the “Early Termination Fee”) in respect of amounts which are or become payable by reason thereof equal to the following: (i) one percent (1.00%) of (x) in the case of the occurrence of the Termination Date, the Aggregate Commitments then in effect (without regard to any termination thereof) or (y) in the case of a reduction of the Aggregate Commitments, the amount of such reduction in the Aggregate Commitments, as applicable, if the Termination Date or reduction shall occur at any time on or prior to the first anniversary of the Second Amendment Effective Date; and (ii) one-half of one percent (0.50%) of (x) in the case of the occurrence of the Termination Date, the Aggregate Commitments then in effect (without regard to any termination thereof) or (y) in the case of a reduction of the Aggregate Commitments, the amount of such reduction in the Aggregate Commitments, as applicable, if the Termination Date or reduction shall occur at any time after the first anniversary of the Second Amendment Effective Date but on or prior to the second anniversary of the Second Amendment Effective Date. All parties to this Agreement agree and acknowledge that the Lenders will have suffered damages on account of the early termination of this Agreement or any portion of the Commitments and that, in view of the difficulty in ascertaining the amount of such damages, the Early Termination Fee constitutes reasonable compensation and liquidated damages to compensate the Lenders on account thereof.

Appears in 1 contract

Samples: Credit Agreement (Nacco Industries Inc)

Early Termination Fee. In the event of that the ~~termination of~~ Termination Date occurs, for any reason, prior to the Maturity Date, or in the event that the Borrowers reduce (but do not terminate) the Aggregate Revolving ~~Credit Commitments~~Commitments prior to the Maturity Date, the Borrower shall pay a fee to the Agent for the benefit of the Lenders ratably (the "Early Termination Fee"), equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the Total Revolving Credit including, day preceding Committed Amount the first anniversary date of the Closing Date First anniversary date 1% of the Total Revolving Credit of the Closing Date, Committed Amount through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the Total Revolving of the Closing Date, Credit Committed Amount through and including, the day preceding the third anniversary date of the Closing Date In the event of a partial reduction of the Revolving Credit Commitments, the Borrower Borrowers shall pay to the ~~Agent~~ Agent, for the ~~benefit~~ account of each Revolving Lender in accordance with its Applicable Percentage, a fee (the ~~Lenders ratably, an~~ “Early Termination ~~Fee~~ Fee”) in respect of amounts which are or become payable by reason thereof equal to ~~following amount at~~ the ~~following times~~following: ~~PERIOD EARLY TERMINATION FEE Closing Date, through and 2%~~ (i) one-half of the amount of the including, day preceding Revolving Credit Optional the first anniversary date Reduction of the Closing Date First anniversary date 1% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the third anniversary date In the event the Term Loans are refinanced or replaced with the proceeds of Indebtedness for Borrowed Money, in whole or in part, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount prepaid including, day preceding the first anniversary date of the Closing Date First anniversary date 1% of the amount prepaid of the Closing Date, through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount prepaid of the Closing Date, through and including, the day preceding the third anniversary date Notwithstanding the foregoing, the Borrower shall not be required to pay the Early Termination Fee in connection with such a refinancing or replacement of the Term Loans and the termination or partial reduction one percent (0.50%) of the Revolving Credit Commitments ~~from~~ then in effect (without regard to any termination thereof) or of the ~~proceeds of a public offering of Securities by the Borrower or the Parent. Nothing contained in this Section shall be deemed a waiver by the Agent or any Lender~~ amount of any ~~Default or Event of Default which results from any such public offering of Securities by~~ reduction in the ~~Borrower and/or the closing of a purchase~~Aggregate Revolving Commitments, acquisition or investment otherwise prohibited by the provisions of this Agreement, which does not result in a prepayment of all Obligations and a termination of all Letters of Credit, all Bond Letters of Credit and Commitments. In additionas applicable, if the ~~Borrower requests that~~ Termination Date or reduction shall occur at any time on or before the Requisite Lenders consent to the purchase or acquisition of, or investment in, any Person which would not otherwise be permitted by the provisions of this Agreement, and the Requisite Lenders refuse to agree and consent to any such purchase, acquisition or investment, the Borrower may, at its option, prepay all first anniversary of the ~~Obligations in full and terminate all of the Commitments and shall have no obligation to pay an Early Termination Fee in connection with any such prepayment and termination~~Closing Date; provided, that (i) all Letters of Credit and all Bond Letters of Credit are terminated or otherwise secured by the issuance of one or more back-to-back letters of credit from an issuer and containing terms reasonably acceptable to the Agent, (ii) ~~all Obligations are paid~~ one-quarter of one percent (0.25%) of the Revolving Credit Commitments then in ~~full~~effect (without regard to any termination thereof) or of the amount of any reduction in the Aggregate Revolving Commitments, as applicable, if the Termination Date or reduction shall occur at any time after the first anniversary of the Closing Date and on or prior to the second anniversary of the Closing Date; and (iii) ~~all Commitments are terminated, and~~ zero percent (iv0%) ~~to the extent the Borrower intends to finance such purchase, acquisition or investment, any one~~ of the ~~Lenders have not agreed~~ Revolving Credit Commitments then in effect (without regard to provide such financing after having been first offered the opportunity by the Borrower to provide such financing substantially on the same terms and conditions as are actually proposed to the Borrower from another lender any termination thereof) or financial institution. A Lender shall be deemed to have so declined to provide the requested financing for the proposed acquisition, purchase or other investment unless such Lender has otherwise notified the Borrower in writing within fifteen (15) days of its receipt of all proposed material terms and conditions of the ~~proposed acquisition~~amount of any reduction in the Aggregate Revolving Commitments, ~~purchase~~ as applicable, if the Termination Date or ~~investment~~ reduction shall occur at any time after the second anniversary of the Closing Date. All parties to this Agreement agree and ~~any requested financing that such Lender wishes to participate in such financing. The Lenders understand and agree~~ acknowledge that the ~~Borrower shall be required only to furnish to~~ Revolving Lenders will have suffered damages on account of the Agent and the Lenders a term sheet summarizing the proposed terms for such financing to be prepared by the Borrower based on actual terms proposed by such other lender or financial institution, and that neither the Borrower nor any such other lender or financial institution shall have any obligation to furnish to the Agent or the Lenders copies early termination of ~~actual commitments, proposals or correspondence from such other lender or financial institution or independent verification of any such proposed terms. Payment of all~~ this Agreement or any portion of the ~~Obligations relating to the~~ Revolving ~~Loan and/or the Term Loans and/or termination or reduction of any~~ Credit Commitments and that, in view of the ~~Commitments~~difficulty in ascertaining the amount of such damages, in whole or in part, by or on behalf of the Borrower, by court order or otherwise, following and as a result of the institution of any bankruptcy proceeding by or against the Borrower, shall be deemed to be a prepayment of the Revolving Loan and the Term Loans, and/or termination or reduction of the Commitments, as appropriate, subject to payment of the Early Termination Fee ~~provided in this subsection if any or all of~~ constitutes reasonable compensation and liquidated damages to compensate the Obligations are actually paid and/or any or all of the Commitments are terminated or reduced at any time during the periods set forth above. All Early Termination Fees shall be paid to the Agent for the ratable benefit of the LendersRevolving Lenders on account thereof.

Appears in 1 contract

Samples: Credit Agreement (Alco Stores Inc)

Early Termination Fee. In the event prior to the fourth anniversary of the ~~termination~~ Second Amendment Effective Date, the Borrowers prepay or are otherwise required to prepay all or any part of the ~~Revolving Credit Commitments~~Term Loan for any reason, the Borrower shall pay a fee to the Agent for the benefit of the Lenders ratably (the "Early Termination Fee"), equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the Total Revolving Credit including, day preceding Committed Amount the first anniversary date of the Closing Date First anniversary date 1% of the Total Revolving Credit of the Closing Date, Committed Amount through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the Total Revolving of the Closing Date, Credit Committed Amount through and including, the day preceding the third anniversary date of the Closing Date In the event of a partial reduction of the Revolving Credit Commitments, the Borrower Borrowers shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount of the including, day preceding Revolving Credit Optional the first anniversary date Reduction of the Closing Date First anniversary date 1% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount of the of the Closing Date, Revolving Credit Optional through and including, Reduction the day preceding the third anniversary date In the event the Term Loans are refinanced or replaced with the proceeds of Indebtedness for Borrowed Money, in whole or in part, the Borrower shall pay to the Agent for the benefit of the Lenders ratably, an Early Termination Fee equal to following amount at the following times: PERIOD EARLY TERMINATION FEE Closing Date, through and 2% of the amount prepaid including, day preceding the first anniversary date of the Closing Date First anniversary date 1% of the amount prepaid of the Closing Date, through and including, the day preceding the second anniversary date of the Closing Date Second anniversary date 1/2% of the amount prepaid of the Closing Date, through and including, the day preceding the third anniversary date Notwithstanding the foregoing, the Borrower shall not be required to pay the Early Termination Fee in connection with such a refinancing or replacement of the Term Loans and the termination or partial reduction of the Revolving Credit Commitments from the proceeds of a public offering of Securities by the Borrower or the Parent. Nothing contained in this Section shall be deemed a waiver by the Agent or any Lender of any Default or Event of Default which results from any such public offering of Securities by the Borrower and/or the closing of a purchase, acquisition or investment otherwise prohibited by the provisions of this Agreement, which does not result in a prepayment of all Obligations and a termination of all Letters of Credit, all Bond Letters of Credit and Commitments. In addition, if the Borrower requests that the Requisite Lenders consent to the purchase or acquisition of, or investment in, any Person which would not otherwise be permitted by the provisions of this Agreement, and the Requisite Lenders refuse to agree and consent to any such purchase, acquisition or investment, the Borrower may, at its option, prepay all of the Obligations in full and terminate all of the Commitments and shall have no obligation to pay an Early Termination Fee in connection with any such prepayment and termination; provided, that (i) all Letters of Credit and all Bond Letters of Credit are terminated or otherwise secured by the issuance of one or more back-to-back letters of credit from an issuer and containing terms reasonably acceptable to the Administrative Agent, (ii) all Obligations are paid in full, (iii) all Commitments are terminated, and (iv) to the extent the Borrower intends to finance such purchase, acquisition or investment, any one of the Lenders have not agreed to provide such financing after having been first offered the opportunity by the Borrower to provide such financing substantially on the same terms and conditions as are actually proposed to the Borrower from another lender or financial institution. A Lender shall be deemed to have so declined to provide the requested financing for the proposed acquisition, purchase or other investment unless such Lender has otherwise notified the Borrower in writing within fifteen (15) days of its receipt of all proposed material terms and conditions of the proposed acquisition, purchase or investment and any requested financing that such Lender wishes to participate in such financing. The Lenders understand and agree that the Borrower shall be required only to furnish to the Agent and the Lenders a term sheet summarizing the proposed terms for such financing to be prepared by the Borrower based on actual terms proposed by such other lender or financial institution, and that neither the Borrower nor any such other lender or financial institution shall have any obligation to furnish to the Agent or the Lenders copies of actual commitments, proposals or correspondence from such other lender or financial institution or independent verification of any such proposed terms. Payment of all or any portion of the Obligations relating to the Revolving Loan and/or the Term Loans and/or termination or reduction of any of the Commitments, in whole or in part, by or on behalf of the Borrower, by court order or otherwise, following and as a result of the institution of any bankruptcy proceeding by or against the Borrower, shall be deemed to be a prepayment of the Revolving Loan and the Term Loans, and/or termination or reduction of the Commitments, as appropriate, subject to payment of the Early Termination Fee provided in this subsection if any or all of the Obligations are actually paid and/or any or all of the Commitments are terminated or reduced at any time during the periods set forth above. All Early Termination Fees shall be paid to the Agent for the ratable benefit of the Lenders, a fee (the “Early Termination Fee”) in respect of amounts which are prepaid or are or become payable by reason thereof equal to (a) if such prepayment occurs on or prior to the first anniversary of the Second Amendment Effective Date, four percent (4.0%) of the amounts so prepaid, (b) if such prepayment occurs after the first anniversary of the Second Amendment Effective Date and on or prior to the second anniversary of the Second Amendment Effective Date, three percent (3.0%) of the amounts so prepaid, (C) if such prepayment occurs after the second anniversary of the Second Amendment Effective Date and on or prior to the third anniversary of the Second Amendment Effective Date, two percent (2.0%) of the amounts so prepaid, and (D) if such prepayment occurs after the third anniversary of the Second Amendment Effective Date and on or prior to the fourth anniversary of the Second Amendment Effective Date, one percent (1.0%) of the amounts so prepaid. For greater certainty, if any such prepayment occurs after the fourth anniversary of the Second Amendment Effective Date, no Early Termination Fee or other fee arising solely on account of prepayment of the Term Loan shall be payable. All parties to this Agreement agree and acknowledge that the Lenders will have suffered damages on account of the early termination of this Agreement and that, in view of the difficulty in ascertaining the amount of such damages, the Early Termination Fee constitutes reasonable compensation and liquidated damages to compensate the Lenders on account thereof.

Appears in 1 contract

Samples: Term Loan and Security Agreement (Birks & Mayors Inc.)

Common use of Early Termination Fee Clause in Contracts