Common use of Make-Whole Amounts Clause in Contracts

Make-Whole Amounts. (a) If any Note is prepaid, repaid, redeemed or paid at any time prior to the Maturity Date, including, in connection with (i) an Optional Redemption, (ii) an acceleration of the Notes following the occurrence of an Event of Default pursuant to Section 6.02 or (iii) a Change of Control, then in addition to the principal amount of the Notes and other Obligations, the Company shall contemporaneously pay in cash (A) any accrued and unpaid interest owed on such principal and (B) the Make Whole Amount, in each case, applicable to the principal amount of the Notes so prepaid, repaid, redeemed, paid or otherwise reduced. (b) The Make Whole Amount shall automatically be due and payable at any time any of the Notes subject to such amounts become due and payable prior to the applicable Maturity Date of the applicable Notes in accordance with the terms hereof as though such Indebtedness was voluntarily prepaid on the date such Notes become due and payable and shall constitute part of the Obligations, whether due to acceleration pursuant to the terms of this Agreement, by operation of law or otherwise (including, without limitation, on account of any bankruptcy filing), in view of the impracticability and extreme difficulty of ascertaining the actual amount of damages to the Holders or profits lost by the Holders as a result of such acceleration, and by mutual agreement of the parties as to a reasonable estimation and calculation of the lost profits or damages of the Holders as a result thereof. Any Make Whole Amount payable pursuant to this Agreement shall be presumed to be the liquidated damages sustained by each Holder as the result of the early termination, acceleration or prepayment and each Note Party agrees that such Make Whole Amount is reasonable under the circumstances currently existing. The Make Whole Amount 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 or the Obligations are reinstated pursuant to Section 1124 of the Bankruptcy Code. If the Make Whole Amount becomes due and payable pursuant to this Agreement, such Make Whole Amount shall be deemed to be principal of the applicable Notes and Obligations under this Agreement and interest shall accrue on the full principal amount of such Notes (including the Make Whole Amount) from and after the applicable triggering event. In the event the Make Whole Amount is determined not to be due and payable by order of any court of competent jurisdiction, including, without limitation, by operation of the Bankruptcy Code, despite such a triggering event having occurred, such Make Whole Amount shall nonetheless constitute Obligations under this Agreement for all purposes hereunder. EACH NOTE PARTY HEREBY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE MAKE WHOLE AMOUNT AND ANY DEFENSE TO PAYMENT, WHETHER SUCH DEFENSE MAY BE BASED IN PUBLIC POLICY OR AMBIGUITY. The Note Parties, the Trustee, the Collateral Agent and the Holders acknowledge and agree that any Make Whole Amount due and payable in accordance with this Agreement shall not constitute unmatured interest, whether under Section 5.02(b)(3) of the Bankruptcy Code or otherwise. Each Note Party further acknowledges and agrees, and waives any argument to the contrary, that payment of such amount does not constitute a penalty or an otherwise unenforceable or invalid obligation. Each Note Party expressly agrees that (i) the Make Whole Amount is reasonable and is the product of an arm’s-length transaction between sophisticated business people, ably represented by counsel, (ii) the Make Whole Amount shall be payable notwithstanding the then prevailing market rates at the time payment is made, (iii) there has been a course of conduct between the Holders and the Note Parties giving specific consideration in this transaction for such agreement to pay the Make Whole Amount, (iv) the Note Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.12, (v) the agreement of the Note Parties to pay the Make Whole Amount is a material inducement to the Holders to hold the Notes, and (vi) the Make Whole Amount represents a good faith, reasonable estimate and calculation of the lost profits, losses or other damages of the Holders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Holders or profits lost by the Holders as a result of such event. The Make Whole Amount shall be paid by the Company to each of the Holders based on the respective principal amount of such Holder’s Notes prepaid, repaid, redeemed, accelerated, paid or otherwise reduced on the date of such prepayment, repayment, redemption, payment, acceleration or other reduction.

Make-Whole Amounts. (a) If any Note is prepaid, repaid, redeemed or paid at any time prior to the Maturity Datetime, including, in connection with (i) an Optional Redemption (but excluding, for the avoidance of doubt, any Warrantless Optional Redemption), (ii) an acceleration of the Notes following the occurrence of an Event of Default pursuant to Section 6.02 or (iii) a Change of ControlMajor Transaction Repurchase, then in addition to the principal amount of the Notes and other ObligationsObligations and the issuance of Warrants pursuant to Section 2.14 (as applicable)), the Company shall contemporaneously pay in cash (A) any accrued and unpaid interest owed on such principal and (B) the Make Whole Amount, in each case, applicable to the principal amount of the Notes so prepaid, repaid, redeemed, paid or otherwise reduced. Notwithstanding the foregoing, no Make Whole Amount shall be payable upon any Warrantless Optional Redemption, any Major Transaction Conversion or any other conversion of the Notes into Conversion Shares. (b) The Make Whole Amount shall automatically be due and payable at any time any of the Notes subject to such amounts become due and payable prior to the applicable Maturity Date of the applicable Notes in accordance with the terms hereof (other than pursuant to a Warrantless Optional Redemption) as though such Indebtedness was voluntarily prepaid on the date such Notes become due and payable and shall constitute part of the Obligations, whether due to acceleration pursuant to the terms of this Agreement, by operation of law or otherwise (including, without limitation, on account of any bankruptcy filing), in view of the impracticability and extreme difficulty of ascertaining the actual amount of damages to the Holders or profits lost by the Holders as a result of such acceleration, and by mutual agreement of the parties as to a reasonable estimation and calculation of the lost profits or damages of the Holders as a result thereof. Any Make Whole Amount payable pursuant to this Agreement shall be presumed to be the liquidated damages sustained by each Holder as the result of the early termination, acceleration or prepayment and each Note Party agrees that such Make Whole Amount is reasonable under the circumstances currently existing. The Make Whole Amount 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 or the Obligations are reinstated pursuant to Section 1124 of the Bankruptcy Code. If the Make Whole Amount becomes due and payable pursuant to this Agreement, such Make Whole Amount shall be deemed to be principal of the applicable Notes and Obligations under this Agreement and interest shall accrue on the full principal amount of such Notes (including the Make Whole Amount) from and after the applicable triggering event. In the event the Make Whole Amount is determined not to be due and payable by order of any court of competent jurisdiction, including, without limitation, by operation of the Bankruptcy Code, despite such a triggering event having occurred, such Make Whole Amount shall nonetheless constitute Obligations under this Agreement for all purposes hereunder. EACH NOTE PARTY HEREBY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE MAKE WHOLE AMOUNT AND ANY DEFENSE TO PAYMENT, WHETHER SUCH DEFENSE MAY BE BASED IN PUBLIC POLICY OR AMBIGUITY. The Note Parties, the Trustee, the Collateral Agent and the Holders acknowledge and agree that any Make Whole Amount due and payable in accordance with this Agreement shall not constitute unmatured interest, whether under Section 5.02(b)(3) of the Bankruptcy Code or otherwise. Each Note Party further acknowledges and agrees, and waives any argument to the contrary, that payment of such amount does not constitute a penalty or an otherwise unenforceable or invalid obligation. Each Note Party expressly agrees that (i) the Make Whole Amount is reasonable and is the product of an arm’s-length transaction between sophisticated business people, ably represented by counsel, (ii) the Make Whole Amount shall be payable notwithstanding the then prevailing market rates at the time payment is made, (iii) there has been a course of conduct between the Holders and the Note Parties giving specific consideration in this transaction for such agreement to pay the Make Whole Amount, (iv) the Note Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.122.13, (v) the agreement of the Note Parties to pay the Make Whole Amount is a material inducement to the Holders to hold the Notes, and (vi) the Make Whole Amount represents a good faith, reasonable estimate and calculation of the lost profits, losses or other damages of the Holders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Holders or profits lost by the Holders as a result of such event. The Make Whole Amount shall be paid by the Company to each of the Holders based on the respective principal amount of such Holder’s Notes prepaid, repaid, redeemed, accelerated, paid or otherwise reduced on the date of such prepayment, repayment, redemption, payment, acceleration payment or other reduction.

Make-Whole Amounts. A Make-Whole Amount shall be calculated, and shall be payable on the applicable prepayment date, in respect of each prepayment of principal on the Senior Notes made, whether during the Restructuring Period (any such prepayment, a "Restructuring Period Prepayment") or thereafter in accordance with the provisions of the applicable Note Agreement (it being understood, for the avoidance of doubt, that principal does not include any accrued interest or Make-Whole Amounts), provided, that: (a) If any Note the Make-Whole Amount calculated with respect to a Restructuring Period Prepayment, shall accrue interest at the Enhanced Interest Rate, compounded semi-annually, from the date that the related Restructuring Period Prepayment is prepaidmade until such Make-Whole Amount is paid, repaidand each Make-Whole Amount, redeemed or paid at any time prior to the Maturity Datetogether with such accrued and unpaid interest, including, in connection with shall (i) an Optional Redemptionbe subordinated to the payment of principal, interest and certain fees and expenses on the Senior Notes and the Facility A Loans under the terms of the Intercreditor Agreement, and (ii) an acceleration of be payable in full on the Notes following the occurrence of an Event of Default pursuant to Section 6.02 or (iii) a Change of Control, then in addition to the principal amount of the Notes and other Obligations, the Company shall contemporaneously pay in cash (A) any accrued and unpaid interest owed on such principal and (B) the Make Whole Amount, in each case, applicable to the principal amount of the Notes so prepaid, repaid, redeemed, paid or otherwise reduced.Bank Final Maturity Date; (b) The Make Whole Amount shall automatically be due and payable at any time any Restructuring Period Prepayment funded by Net Proceeds (after allocation of such prepayment among the Notes subject to such amounts become due and payable prior to the applicable Maturity Date of the applicable Senior Notes in accordance with the terms hereof as though Pro-Rata Payment Requirement) shall be further allocated first to any Original Scheduled Mandatory Prepayment occurring prior to or not more than 180 days after the date of such Indebtedness was voluntarily prepaid Restructuring Period Prepayment and, to the extent so allocated, shall not be subject to payment of Make-Whole Amount (any such prepayment so allocated to any such Original Scheduled Mandatory Prepayment, a "Restructuring Period Par Prepayment") and, to the extent not so allocable, shall be applied ratably to all remaining maturities (for which Make-Whole Amounts, calculated in accordance with clause (d) below, shall be payable), provided, further, that, to the extent the principal amortization with respect to an Original Scheduled Mandatory Prepayment has been the subject of an allocation in respect of a Restructuring Period Prepayment giving rise to a Restructuring Period Par Prepayment, it may not be the subject of an allocation giving rise to a Restructuring Period Par Prepayment in respect of any later Restructuring Period Prepayment; (c) for purposes of the foregoing clause (b), each Restructuring Period Prepayment funded by the Inland Tree Farm Net Proceeds shall be deemed to have occurred not more than 180 days prior to each Original Scheduled Mandatory Prepayment due December 1, 2002 in respect of the 1994 Notes and the 1995 Notes; (d) on and after the Effective Date, including with respect to any prepayments of principal on the date such Senior Notes become due and payable and made after the Restructuring Period, any Make-Whole Amount shall constitute part be calculated according to the relevant provisions of the Obligations, whether due to acceleration pursuant Note Agreements based on the amortization schedule and interest rates and payment dates in effect immediately prior to the terms execution of this Agreement, by operation except that for the purpose of law or otherwise (includingdetermining the Reinvestment Rate, without limitation, on account of any bankruptcy filing), in view of the impracticability and extreme difficulty of ascertaining the actual amount of damages to the Holders or profits lost by the Holders as a result of such acceleration, and by mutual agreement of the parties as to a reasonable estimation and calculation of the lost profits or damages of the Holders as a result thereof. Any Make Whole Amount payable pursuant to this Agreement shall be presumed to be the liquidated damages sustained by each Holder as the result of the early termination, acceleration or prepayment and each Note Party agrees that such Make Whole Amount is reasonable under the circumstances currently existing. The Make Whole Amount 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 or the Obligations are reinstated pursuant to Section 1124 of the Bankruptcy Code. If the Make Whole Amount becomes due and payable pursuant to this Agreement, such Make Whole Amount shall be deemed to be principal of the applicable Notes and Obligations under this Agreement and interest shall accrue on the full principal amount of such Notes (including the Make Whole Amount) from and after the applicable triggering event. In the event the Make Whole Amount is determined not to be due and payable by order of any court of competent jurisdiction, including, without limitation, by operation of the Bankruptcy Code, despite such a triggering event having occurred, such Make Whole Amount shall nonetheless constitute Obligations under this Agreement for all purposes hereunder. EACH NOTE PARTY HEREBY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE MAKE WHOLE AMOUNT AND ANY DEFENSE TO PAYMENT, WHETHER SUCH DEFENSE MAY BE BASED IN PUBLIC POLICY OR AMBIGUITY. The Note Parties, the Trustee, the Collateral Agent and the Holders acknowledge and agree that any Make Whole Amount due and payable in accordance with this Agreement shall not constitute unmatured interest, whether under Section 5.02(b)(3) of the Bankruptcy Code or otherwise. Each Note Party further acknowledges and agrees, and waives any argument to the contrary, that payment of such amount does not constitute a penalty or an otherwise unenforceable or invalid obligation. Each Note Party expressly agrees that (i) the Make Whole Amount is reasonable applicable interest rate margin shall be 1.50% instead of 0.50% and is the product of an arm’s-length transaction between sophisticated business people, ably represented by counsel, (ii) the Make yield shall be the yield reported by Bloomberg Financial Market Service on the display designated as "USD" at 10:00 a.m., New York time (instead of the yield reported by the Telerate Access Service on the display designated "Page 5" at 10:00 a.m., New York time); and (e) with respect to a Make-Whole Amount calculated in respect of a Restructuring Period Prepayment made prior to December 31, 2004, the Company may, provided no Event of Default shall have occurred and be payable notwithstanding the then prevailing market rates continuing at the time of such Restructuring Period Prepayment, at its option, exercisable by delivering written notice of such option exercise at least ten (10) Business Days prior to the date of such Restructuring Period Prepayment, pay such Make-Whole Amount by delivering by overnight delivery within five (5) Business Days of the date of the applicable Restructuring Period Prepayment to each holder of Senior Notes entitled to payment is madeof such Make-Whole Amount duly authorized, (iii) there validly issued, fully paid and non-assessable Common Units registered in the name of such holder or its nominee, which Common Units shall have an aggregate value equal to the Make-Whole Amount then due such holder, provided, that the value of such Common Units shall be determined immediately prior to the making of such Restructuring Period Prepayment at the Average Market Price of the Common Units determined as of the date of the applicable Restructuring Period Prepayment, provided, further, that such number of Common Units so determined shall be rounded to the nearest whole number of Common Units. With respect to each Restructuring Period Prepayment that the Company has been a course of conduct between the Holders and the Note Parties giving specific consideration in this transaction for such agreement exercised its option to pay such Make-Whole Amounts by delivering Common Units, then the Make Whole AmountCompany shall (in addition to the notice delivery requirements set forth in Section 5 of the respective Note Agreements), at least two (iv2) Business Days prior to the date of such Restructuring Period Prepayment, deliver to each Holder an officer's certificate signed by a Responsible Officer specifying a true and correct calculation in reasonable detail of: (i) the Note Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.12, Average Market Price; and (vii) the agreement number of the Note Parties Common Units to pay the Make Whole Amount is a material inducement to the Holders to hold the Notes, be delivered (on an aggregate basis and (vi) the Make Whole Amount represents a good faith, reasonable estimate and calculation of the lost profits, losses or other damages of the Holders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Holders or profits lost by the Holders as a result of such event. The Make Whole Amount shall be paid by the Company with respect to each of the Holders based on the respective principal amount of such Holder’s Notes prepaid, repaid, redeemed, accelerated, paid or otherwise reduced Senior Note) on the date of such prepayment, repayment, redemption, payment, acceleration or other reductionRestructuring Period Prepayment.