Prepayment of Notes. (a) If the Notes are paid prior to the ------------------- stated maturity date thereof for any reason other than as a result of (i) a - declaration or acceleration following the occurrence of an Event of Default (as hereinafter defined), (ii) the application by Mortgagee of any net insurance -- proceeds received by it following any damage to or destruction of the Mortgaged Premises, or (iii) the application by Mortgagee of any net award received by it --- following a Taking (as hereinafter defined) (collectively, a "Non-Voluntary Prepayment"), Mortgagor hereby agrees to pay the premium provided herein and in the Notes. Mortgagor acknowledges that Mortgagee, in making the loan evidenced by the Notes (the "loan") is relying on Mortgagor's creditworthiness and its agreement to repay the Notes in strict accordance with the terms set forth therein. Mortgagor acknowledges that Mortgagee would not make the loan without full and complete assurance by Mortgagor of its agreement to abide by the terms thereof and its further agreement not to voluntarily prepay all or any part of the principal of the Notes prior to the final maturity date thereof, except as set forth herein and in the Notes. Therefore, any prepayment of the Notes other than a Non-Voluntary Prepayment will prejudice Mortgagee's ability to meet its obligations and to earn the return on the funds advanced to Mortgagor, which Mortgagee intended and expected to earn when it agreed to make the loan and will also result in other loss and additional expenses to Mortgagee. Accordingly, in recognition of the foregoing and in consideration of Mortgagee making the loan at the interest rate and for the term set forth in the Notes, Mortgagor hereby expressly (x) waives any and all rights it may have under applicable law to - voluntarily prepay without charge or premium all or any part of the Notes, and (y) agrees that if, for any reason other than a Non-Voluntary Prepayment, - prepayment of all or any part of the principal of the Notes is made by or on behalf of Mortgagor, then Mortgagor or any other party making any such prepayment shall be obligated to pay, concurrently therewith, a premium in the amount set forth below, and the payment of such premium shall be a condition to the making of such prepayment and shall be secured by this Mortgage. Without limiting the scope of the foregoing provisions, the provisions of this paragraph shall constitute both a waiver of any right Mortgagor may have to repay the loan without charge and an agreement by Mortgagor to pay the premium set forth below except in the event of a Non-Voluntary Prepayment, and Mortgagor hereby declares that Mortgagee's agreement to make the loan to Mortgagor at the interest rate and for the term set forth in the Notes constitutes adequate consideration for this waiver and agreement by Mortgagor. Notwithstanding anything contained in this subparagraph to the contrary, Mortgagor shall not have the right to voluntarily prepay the Notes prior to June 1, 1993. (b) On June 1, 1993 and on any day thereafter, upon not less than 30 nor more than 60 days' prior written notice to Mortgagee, Mortgagor may, at its option, prepay the entire (but not less than the entire) aggregate principal amount of the Notes at the time outstanding, at the principal amount so prepaid, together with unpaid interest on the Notes accrued to the date of such prepayment, plus a premium equal to the greater of: (i) the product obtained by multiplying (x) the difference obtained - by subtracting from 9.75% the yield rate on United States Treasury Notes due on or about the maturity date of the Notes as such yield rate is reported in The Wall Street Journal or other similar publication on the ----------------------- fifth business day preceding the prepayment date or, if no yield rate on United States Treasury Notes is obtainable, at the yield rate of the issue most closely equivalent to United States Treasury Notes, as determined by Mortgagee in its sole discretion and (y) the number of - years and fraction thereof remaining from the prepayment date to the scheduled maturity date of the Notes, and (z) the amount of the prepaid - principal balance; and (ii) 1% of the amount of the prepaid principal balance. (c) On January 15, 1998 and on any day thereafter, upon not less than 30 days' prior written notice and on the condition that Mortgagor is not at the time of such notice or at any time thereafter in default under this Mortgage or the Notes, Mortgagor may prepay the entire (but not less than the entire) aggregate principal amount of the Notes at the time outstanding, at the principal amount so prepaid, together with unpaid interest on the Notes accrued to the date fixed for such prepayment, without premium. (d) The entire unpaid and outstanding aggregate principal amount of the Notes shall mature and become due and payable on the date fixed for prepayment, together with the applicable premium and interest accrued and unpaid on such date except that any notice of prepayment given by Mortgagor may be withdrawn by Mortgagor, provided that (i) no withdrawal of a prepayment notice -------- - has been made during the preceding 24 months and (ii) all costs and expenses of -- Mortgagee and Mortgagor incurred in connection with such notice of prepayment and such withdrawal, including, without limitation, attorneys' fees, shall have been paid in full and indemnified against by Mortgagor. (e) Except as specifically set forth in this section 1.05 and in Article 3 of this Mortgage, the Notes may not be prepaid in whole or in part.
Appears in 1 contract
Samples: Consolidation, Extension and Modification Agreement (Boston Properties Inc)
Prepayment of Notes. (a) If the Notes are paid prior to the ------------------- stated maturity date thereof Diomed may at its option call for any reason other than as a result of (i) a - declaration or acceleration following the occurrence of an Event of Default (as hereinafter defined), (ii) the application by Mortgagee of any net insurance -- proceeds received by it following any damage to or destruction of the Mortgaged Premises, or (iii) the application by Mortgagee of any net award received by it --- following a Taking (as hereinafter defined) (collectively, a "Non-Voluntary Prepayment"), Mortgagor hereby agrees to pay the premium provided herein and in the Notes. Mortgagor acknowledges that Mortgagee, in making the loan evidenced by the Notes (the "loan") is relying on Mortgagor's creditworthiness and its agreement to repay the Notes in strict accordance with the terms set forth therein. Mortgagor acknowledges that Mortgagee would not make the loan without full and complete assurance by Mortgagor of its agreement to abide by the terms thereof and its further agreement not to voluntarily prepay prepayment all or any part of the principal of the Class C Notes prior to the final maturity date thereofMaturity Date, except as set forth herein and in follows:
(i) The Notes called for prepayment shall be redeemable for an amount (the Notes. Therefore, any prepayment of the Notes other than a Non-Voluntary "Prepayment will prejudice Mortgagee's ability Price") equal to meet its obligations and to earn the return on the funds advanced to Mortgagor, which Mortgagee intended and expected to earn when it agreed to make the loan and will also result in other loss and additional expenses to Mortgagee. Accordingly, in recognition of the foregoing and in consideration of Mortgagee making the loan at the interest rate and for the term set forth in the Notes, Mortgagor hereby expressly (x) waives any and all rights it may have under applicable law to - voluntarily prepay without charge or premium all or any part 100% of the Notesprincipal amount called for prepayment, and plus (y) agrees that if, for any reason other interest accrued through the day immediately preceding the date of prepayment (the "Prepayment Date").
(ii) If fewer than a Non-Voluntary Prepayment, - prepayment of all or any part of the principal of the outstanding Class C Notes is made by or on behalf of Mortgagorare to be prepaid, then Mortgagor or any other party making any such prepayment all Class C Notes shall be obligated partially prepaid on a pro rata basis.
(iii) Prior to paythe Prepayment Date, concurrently therewith, a premium in the Diomed shall deposit into escrow an amount set forth below, and sufficient for the payment of such premium shall be a condition to the making aggregate Prepayment Price of such the Class C Notes being called for prepayment and shall be secured by this Mortgage. Without limiting make such funds available on and after the scope of Prepayment Date for payment to the foregoing provisions, the provisions of this paragraph shall constitute both a waiver of any right Mortgagor may have to repay the loan without charge Holders who present their Class C Notes and an agreement by Mortgagor to pay the premium set forth below except otherwise comply with Diomed's instructions contained in the event of a Non-Voluntary Prepayment, and Mortgagor hereby declares that Mortgagee's agreement to make the loan to Mortgagor at the interest rate and for the term set forth in the Notes constitutes adequate consideration for this waiver and agreement by Mortgagor. Notwithstanding anything contained in this subparagraph to the contrary, Mortgagor shall not have the right to voluntarily prepay the Notes prior to June 1, 1993Prepayment Notice (as defined below).
(biv) On June 1the Prepayment Date, 1993 and on any day thereafterDiomed shall cause the Holders whose Class C Notes have been presented for prepayment to be issued payment of the Prepayment Price. In the case of a partial prepayment, upon not Diomed shall also issue new Class C Notes to the Holders for the principal amount remaining outstanding after the Prepayment Date promptly after the Holders' presentation of the Class C Notes called for prepayment.
(v) Not less than 30 nor more than 60 days' five (5) business days prior written to the Prepayment Date, Diomed shall issue a notice (the "Prepayment Notice") to Mortgagee, Mortgagor may, at its option, prepay each Holder setting forth the entire (but not less than following:
1. the entire) Prepayment Date;
2. the Prepayment Price;
3. the aggregate principal amount of the Class C Notes at being called for prepayment;
4. a statement instructing the time outstanding, at the principal amount so prepaid, together with unpaid interest on the Holders to surrender their Class C Notes accrued to the date of such prepayment, plus a premium equal to the greater of:
(i) the product obtained by multiplying (x) the difference obtained - by subtracting from 9.75% the yield rate on United States Treasury Notes due on or about the maturity date for prepayment and payment of the Notes as such yield rate is reported in The Wall Street Journal or other similar publication on Prepayment Price, including the ----------------------- fifth business day preceding the prepayment date name and address of Diomed or, if no yield rate on United States Treasury applicable, the paying agent of Diomed, where Class C Notes is obtainable, at the yield rate of the issue most closely equivalent are to United States Treasury Notes, as determined by Mortgagee in its sole discretion and (y) the number of - years and fraction thereof remaining from the prepayment date to the scheduled maturity date of the Notes, and (z) the amount of the prepaid - principal balance; and
(ii) 1% of the amount of the prepaid principal balance.
(c) On January 15, 1998 and on any day thereafter, upon not less than 30 days' prior written notice and on the condition that Mortgagor is not at the time of such notice or at any time thereafter in default under this Mortgage or the Notes, Mortgagor may prepay the entire (but not less than the entire) aggregate principal amount of the Notes at the time outstanding, at the principal amount so prepaid, together with unpaid interest on the Notes accrued to the date fixed for such prepayment, without premium.
(d) The entire unpaid and outstanding aggregate principal amount of the Notes shall mature and become due and payable on the date fixed be surrendered for prepayment, together with the applicable premium and interest accrued and unpaid on such date except that any notice of prepayment given by Mortgagor may be withdrawn by Mortgagor, provided that (i) no withdrawal of a prepayment notice -------- - has been made during the preceding 24 months and (ii) all costs and expenses of -- Mortgagee and Mortgagor incurred in connection with such notice of prepayment and such withdrawal, including, without limitation, attorneys' fees, shall have been paid in full and indemnified against by Mortgagor.
(e) Except as specifically set forth in this section 1.05 and in Article 3 of this Mortgage, the Notes may not be prepaid in whole or in part.;
Appears in 1 contract
Prepayment of Notes. 6.1 Prepayment of Notes upon Event of Loss, Obsolescence or ET Date.
(a) If an Event of Loss occurs with respect to a Unit and such Unit is not replaced pursuant to Section 5.12 of the Notes are Participation Agreement, the principal on each Outstanding Note shall be prepaid in part, together with interest on the principal so prepaid, at a Prepayment Price equal to the sum of (1) as to principal thereof, an amount equal to the product obtained by multiplying the aggregate Current Principal Amount of each Outstanding Note as of the Prepayment Date (after deducting therefrom the related scheduled principal payment, if any, due and paid to Indenture Trustee on the Prepayment Date) by a fraction, the numerator of which shall be the Equipment Value of such Unit and the denominator of which shall be the Equipment Value of the Units then subject to the Lien of this Indenture immediately prior to such Prepayment Date, plus (2) as to interest, the aggregate amount of interest accrued and unpaid in respect of the principal amount to be prepaid pursuant to clause (1) above to but not including the Prepayment Date after giving effect to the application of any Priority Distribution or Supplemental Priority Distribution distributable in accordance with Section 6.1(b) or 6.1(c) of the Partnership Agreement received by Indenture Trustee on or prior to the ------------------- stated maturity date thereof for any reason other than as a result of such prepayment. Each prepayment made pursuant to subclause (i1) a - declaration or acceleration following of this clause shall be (A) applied to the occurrence prepayment of an Event of Default (as hereinafter defined), (ii) the application by Mortgagee of any net insurance -- proceeds received by it following any damage to or destruction such Notes being prepaid so that each of the Mortgaged Premises, or (iii) the application by Mortgagee of any net award received by it --- following a Taking (as hereinafter defined) (collectively, a "Non-Voluntary Prepayment"), Mortgagor hereby agrees to pay the premium provided herein and in the Notes. Mortgagor acknowledges that Mortgagee, in making the loan evidenced by the Notes (the "loan") is relying on Mortgagor's creditworthiness and its agreement to repay the Notes in strict accordance with the terms set forth therein. Mortgagor acknowledges that Mortgagee would not make the loan without full and complete assurance by Mortgagor of its agreement to abide by the terms thereof and its further agreement not to voluntarily prepay all or any part of the principal of the Notes prior to the final maturity date thereof, except as set forth herein and in the Notes. Therefore, any prepayment of the Notes other than a Non-Voluntary Prepayment will prejudice Mortgagee's ability to meet its obligations and to earn the return on the funds advanced to Mortgagor, which Mortgagee intended and expected to earn when it agreed to make the loan and will also result in other loss and additional expenses to Mortgagee. Accordingly, in recognition of the foregoing and in consideration of Mortgagee making the loan at the interest rate and for the term set forth in the Notes, Mortgagor hereby expressly (x) waives any and all rights it may have under applicable law to - voluntarily prepay without charge or premium all or any part of the Notes, and (y) agrees that if, for any reason other than a Non-Voluntary Prepayment, - prepayment of all or any part of the principal of the Notes is made by or on behalf of Mortgagor, then Mortgagor or any other party making any such prepayment shall be obligated to pay, concurrently therewith, a premium in the amount set forth below, and the payment of such premium shall be a condition to the making of such prepayment and shall be secured by this Mortgage. Without limiting the scope of the foregoing provisions, the provisions of this paragraph shall constitute both a waiver of any right Mortgagor may have to repay the loan without charge and an agreement by Mortgagor to pay the premium set forth below except in the event of a Non-Voluntary Prepayment, and Mortgagor hereby declares that Mortgagee's agreement to make the loan to Mortgagor at the interest rate and for the term set forth in the Notes constitutes adequate consideration for this waiver and agreement by Mortgagor. Notwithstanding anything contained in this subparagraph to the contrary, Mortgagor shall not have the right to voluntarily prepay the Notes prior to June 1, 1993.remaining installments of
(b) On June 1At any time on a Payment Date occurring after the fifth anniversary of the Commencement Date, 1993 if General Partner determines that any Units then subject to the Lien of this Indenture are obsolete or surplus to the needs of Partnership in accordance with Section 5.16 of the Participation Agreement and on any day thereafter, upon not less than 30 nor more than 60 days' prior written either (y) Nonaffiliated Partner Trustee has given notice to Mortgagee, Mortgagor may, at Indenture Trustee pursuant to Section 5.18 of the Participation Agreement of its option, election to retain such Units and to prepay the entire Notes on the Reduction Date as provided below, or (but z) Nonaffiliated Partner Trustee has not less than given such notice and Partnership has not withdrawn its notice as provided in Section 5.16 of the entireParticipation Agreement, principal on each Outstanding Note shall be prepaid in part, together with interest on the principal so prepaid at a Prepayment Price equal to the sum of (1) as to principal thereof, an amount equal to the product obtained by multiplying the Current Principal Amount of each Outstanding Note as of the Prepayment Date (after deducting therefrom the related scheduled principal payment, if any, due and paid to Indenture Trustee on the Prepayment Date) by a fraction, the numerator of which shall be the Equipment Value of such Unit or Units and the denominator of which shall be the Equipment Value of the Units then subject to the Lien of this Indenture immediately before such Prepayment Date, plus (2) as to interest, the aggregate principal amount of the Notes at the time outstanding, at interest accrued and unpaid in respect of the principal amount so prepaidto be prepaid pursuant to clause (1) above to, together with unpaid interest but not including, the Prepayment Date after giving effect to the application of any Priority Distribution paid to Indenture Trustee on the Notes accrued to or before the date of such prepayment, plus a premium equal (3) the Premium. Each prepayment made pursuant to subclause (1) of this clause (b) shall be (A) applied to the greater of:
(i) the product obtained by multiplying (x) the difference obtained - by subtracting from 9.75% the yield rate on United States Treasury prepayment of such Notes due on or about the maturity date being prepaid so that each of the Notes as remaining installments of principal of each such yield rate is reported Note shall be reduced in The Wall Street Journal or other similar publication on the ----------------------- fifth business day preceding proportion that the prepayment date or, if no yield rate on United States Treasury Notes is obtainable, at the yield rate of the issue most closely equivalent to United States Treasury Notes, as determined by Mortgagee in its sole discretion and (y) the number of - years and fraction thereof remaining from the prepayment date to the scheduled maturity date of the Notes, and (z) the principal amount of the prepaid - prepayment bears to the unpaid principal balance; and
(ii) 1% of the amount of such Notes in the prepaid principal balance.aggregate immediately prior to the prepayment
(c) On January 15Upon the election of General Partner to exercise its fixed price purchase option pursuant to Section 9.1 of the Partnership Agreement, 1998 and on any day thereafter, upon not less than 30 days' prior written notice and on the condition that Mortgagor is not ET Date, the Outstanding Notes shall be prepaid at a Prepayment Price equal to the time sum of such notice or at any time thereafter in default under this Mortgage or the Notes(1) Current Principal Amount thereof, Mortgagor may prepay the entire plus (2) accrued but unpaid interest thereon to, but not less than including, the entireapplicable Prepayment Date, plus (3) aggregate principal amount of the Premium plus (4) any other accrued and unpaid Secured Obligations, if any. The Prepayment Date for Notes at to be prepaid pursuant to this Section 6.1(c) shall be the time outstanding, at the principal amount so prepaid, together with unpaid interest Payment Date that occurs on the Notes accrued to the date fixed for such prepayment, without premiumET Date.
(d) The entire unpaid Upon the request of Nonaffiliated Partner Trustee or Beneficiaries and outstanding aggregate principal amount delivery of the Notes notice, all pursuant to Section 8.3(e)(iii), each Outstanding Note shall mature and become due and payable be purchased on the date fixed for prepaymentspecified in the notice at a Prepayment Price equal to the sum of (1) the Current Principal Amount thereof, together with plus (2) accrued but unpaid interest thereon to, but not including, the applicable premium and interest accrued and unpaid on such date except that any notice of prepayment given by Mortgagor may be withdrawn by Mortgagor, provided that (i) no withdrawal of a prepayment notice -------- - has been made during the preceding 24 months and (ii) all costs and expenses of -- Mortgagee and Mortgagor incurred in connection with such notice of prepayment and such withdrawal, including, without limitation, attorneys' fees, shall have been paid in full and indemnified against by MortgagorPrepayment Date.
(e) Except as specifically set forth in this section 1.05 Upon the request of Nonaffiliated Partner Trustee or Beneficiaries and in Article 3 delivery of this Mortgagenotice, all pursuant to Section 8.3(e)(iv), each Outstanding Note shall be purchased at a Prepayment Price equal to the sum of (1) the Current Principal Amount thereof, plus (2) accrued but unpaid interest thereon to, but not including, the Notes may not be prepaid in whole or in partapplicable Prepayment Date, plus (3) the Premium.
Appears in 1 contract
Samples: Trust Indenture and Security Agreement (Bj Services Co)
Prepayment of Notes. (aa.1) If the Notes are paid prior to the ------------------- stated maturity date thereof for any reason other than as a result of (i) a - declaration or acceleration following the occurrence of an Event of Default (as hereinafter defined), (ii) the application by Mortgagee of any net insurance -- proceeds received by it following any damage to or destruction of the Mortgaged Premises, or (iii) the application by Mortgagee of any net award received by it --- following a Taking (as hereinafter defined) (collectively, a "Non-Voluntary Prepayment"), Mortgagor hereby agrees to pay the premium provided herein and in the Notes. Mortgagor acknowledges that Mortgagee, in making the loan evidenced by the Notes (the "loan") is relying on Mortgagor's creditworthiness and its agreement to repay the Notes in strict accordance with the terms set forth therein. Mortgagor acknowledges that Mortgagee would not make the loan without full and complete assurance by Mortgagor of its agreement to abide by the terms thereof and its further agreement not to voluntarily prepay all or any part of the principal of the Notes prior to the final maturity date thereof, except as set forth herein and in the Notes. Therefore, any prepayment of the Notes other than a Non-Voluntary Prepayment will prejudice Mortgagee's ability to meet its obligations and to earn the return on the funds advanced to Mortgagor, which Mortgagee intended and expected to earn when it agreed to make the loan and will also result in other loss and additional expenses to Mortgagee. Accordingly, in recognition of the foregoing and in consideration of Mortgagee making the loan at the interest rate and for the term set forth in the Notes, Mortgagor hereby expressly (x) waives any and all rights it may have under applicable law to - voluntarily prepay without charge or premium all or any part of the Notes, and (y) agrees that if, for any reason other than a Non-Voluntary Prepayment, - prepayment of all or any part of the principal of the Notes is made by or on behalf of Mortgagor, then Mortgagor or any other party making any such prepayment shall be obligated to pay, concurrently therewith, a premium in the amount set forth below, and the payment of such premium shall be a condition to the making of such prepayment and shall be secured by this Mortgage. Without limiting the scope of the foregoing provisions, the provisions of this paragraph shall constitute both a waiver of any right Mortgagor may have to repay the loan without charge and an agreement by Mortgagor to pay the premium set forth below except in the event of a Non-Voluntary Prepayment, and Mortgagor hereby declares that Mortgagee's agreement to make the loan to Mortgagor at the interest rate and for the term set forth in the Notes constitutes adequate consideration for this waiver and agreement by Mortgagor. Notwithstanding anything contained in this subparagraph to the contrary, Mortgagor shall not have the right to voluntarily prepay the Notes prior to June 1, 1993.
(b) On June 1, 1993 and on any day thereafter, upon not less than 30 nor more than 60 days' prior written notice to Mortgagee, Mortgagor may, at its option, prepay the entire (but not less than the entire) aggregate The principal amount of due under the Notes at the time outstanding1991 Note may be prepared in whole or in part, at the principal amount so prepaid, together with unpaid accrued interest on the Notes accrued to the date of such prepayment, plus subject to this Section 2.03 and provided the Company pays a prepayment premium (the "1991 Note Prepayment Premium") equal to four and one-half percent (4.5%) of the greater ofoutstanding principal balance at the time of prepayment, which percentage shall be reduced by one-half of one percent (0.5%) on January 1, 1999, and each succeeding year. Written notice of each optional prepayment of the 1991 Note shall be given to the Board (or the holder of the Notes), not less than ten (10) days prior to the proposed prepayment date, which shall coincide with a principal installment payment date, whereupon the principal amount of said prepayment, together with the Prepayment Premium applicable thereto, if any, shall become due and payable on such payment date. Such notice shall include a statement of the amount of principal to be prepaid and the payment date on which such prepayment will be made. The final determination of any prepayment fee hereunder shall be made by the Board and shall be conclusive and binding for all purposes absent manifest error.
(a.2) The principal amount due under the 1998 Note may be prepaid in whole or in part with accrued interest to the date of such prepayment, subject to this Section 2.03 and provided:
(i) the product obtained by multiplying (x) Company shall provide the difference obtained - by subtracting from 9.75% the yield rate on United States Treasury Notes due on or about the maturity date of the Notes as such yield rate is reported in The Wall Street Journal or other similar publication on the ----------------------- fifth business day preceding the prepayment date orBoard with an Officer's Certificate, if no yield rate on United States Treasury Notes is obtainable, at the yield rate of the issue most closely equivalent to United States Treasury Notes, as determined by Mortgagee in its sole discretion and (y) the number of - years and fraction thereof remaining from the prepayment date to the scheduled maturity date of the Notes, and (z) the amount of the prepaid - principal balance; and
(ii) 1% of the amount of the prepaid principal balance.
(c) On January 15, 1998 and on any day thereafter, upon dated not less than 30 days' 15 days prior written notice and on to the condition that Mortgagor is not at date fixed for said prepayment, setting forth the time of such notice or at any time thereafter in default under this Mortgage or the Notes, Mortgagor may prepay the entire (but not less than the entire) aggregate principal amount Company's calculation of the Notes at prepayment premium, as defined below (the time outstanding"1998 Prepayment Premium"), at the principal amount so prepaiddue in connection with such prepayment, together with unpaid interest on the Notes accrued to calculated as of the date fixed for such prepayment, without premium.together with any accompanying worksheets;
(dii) The entire unpaid and outstanding aggregate principal amount if the Board disagrees with the Company's calculation of the Notes Prepayment Premium, the Board shall mature so notify the Company in writing prior to the date fixed for said prepayment, and become due and payable the Board's recalculation of the Prepayment Premium shall be deemed conclusive absent manifest error; and
(iii) on the date fixed for said prepayment, together with the applicable premium and interest accrued and unpaid on such date except that any notice Company paid to the Board the amount of prepayment given by Mortgagor may be withdrawn by Mortgagor, provided that (i) no withdrawal of a prepayment notice -------- - has been made during the preceding 24 months and (ii) all costs and expenses of -- Mortgagee and Mortgagor incurred in connection with such notice of prepayment and such withdrawal, including, without limitation, attorneys' fees, shall have been paid in full and indemnified against by MortgagorPrepayment Premium.
(e) Except as specifically set forth in this section 1.05 and in Article 3 of this Mortgage, the Notes may not be prepaid in whole or in part.
Appears in 1 contract
Prepayment of Notes. (a) If the Notes are paid prior to the ------------------- stated maturity date thereof Diomed may at its option call for any reason other than as a result of (i) a - declaration or acceleration following the occurrence of an Event of Default (as hereinafter defined), (ii) the application by Mortgagee of any net insurance -- proceeds received by it following any damage to or destruction of the Mortgaged Premises, or (iii) the application by Mortgagee of any net award received by it --- following a Taking (as hereinafter defined) (collectively, a "Non-Voluntary Prepayment"), Mortgagor hereby agrees to pay the premium provided herein and in the Notes. Mortgagor acknowledges that Mortgagee, in making the loan evidenced by the Notes (the "loan") is relying on Mortgagor's creditworthiness and its agreement to repay the Notes in strict accordance with the terms set forth therein. Mortgagor acknowledges that Mortgagee would not make the loan without full and complete assurance by Mortgagor of its agreement to abide by the terms thereof and its further agreement not to voluntarily prepay prepayment all or any part of the principal of the Class D Notes prior to the final maturity date thereofMaturity Date, except as set forth herein and in follows:
(i) The Notes called for prepayment shall be redeemable for an amount (the Notes. Therefore, any prepayment of the Notes other than a Non-Voluntary "Prepayment will prejudice Mortgagee's ability Price") equal to meet its obligations and to earn the return on the funds advanced to Mortgagor, which Mortgagee intended and expected to earn when it agreed to make the loan and will also result in other loss and additional expenses to Mortgagee. Accordingly, in recognition of the foregoing and in consideration of Mortgagee making the loan at the interest rate and for the term set forth in the Notes, Mortgagor hereby expressly (x) waives any and all rights it may have under applicable law to - voluntarily prepay without charge or premium all or any part 100% of the Notesprincipal amount called for prepayment, and plus (y) agrees that if, for any reason other interest accrued through the day immediately preceding the date of prepayment (the "Prepayment Date").
(ii) If fewer than a Non-Voluntary Prepayment, - prepayment of all or any part of the principal of the outstanding Class D Notes is made by or on behalf of Mortgagorare to be prepaid, then Mortgagor or any other party making any such prepayment all Class D Notes shall be obligated partially prepaid on a pro rata basis.
(iii) Prior to paythe Prepayment Date, concurrently therewith, a premium in the Diomed shall deposit into escrow an amount set forth below, and sufficient for the payment of such premium shall be a condition to the making aggregate Prepayment Price of such the Class D Notes being called for prepayment and shall be secured by this Mortgage. Without limiting make such funds available on and after the scope of Prepayment Date for payment to the foregoing provisions, the provisions of this paragraph shall constitute both a waiver of any right Mortgagor may have to repay the loan without charge Holders who present their Class D Notes and an agreement by Mortgagor to pay the premium set forth below except otherwise comply with Diomed's instructions contained in the event of a Non-Voluntary Prepayment, and Mortgagor hereby declares that Mortgagee's agreement to make the loan to Mortgagor at the interest rate and for the term set forth in the Notes constitutes adequate consideration for this waiver and agreement by Mortgagor. Notwithstanding anything contained in this subparagraph to the contrary, Mortgagor shall not have the right to voluntarily prepay the Notes prior to June 1, 1993Prepayment Notice (as defined below).
(biv) On June 1the Prepayment Date, 1993 and on any day thereafterDiomed shall cause the Holders whose Class D Notes have been presented for prepayment to be issued payment of the Prepayment Price. In the case of a partial prepayment, upon not Diomed shall also issue new Class D Notes to the Holders for the principal amount remaining outstanding after the Prepayment Date promptly after the Holders' presentation of the Class D Notes called for prepayment.
(v) Not less than 30 nor more than 60 days' five (5) business days prior written to the Prepayment Date, Diomed shall issue a notice (the "Prepayment Notice") to Mortgagee, Mortgagor may, at its option, prepay each Holder setting forth the entire (but not less than following:
1. the entire) Prepayment Date;
2. the Prepayment Price;
3. the aggregate principal amount of the Class D Notes at being called for prepayment;
4. a statement instructing the time outstanding, at the principal amount so prepaid, together with unpaid interest on the Holders to surrender their Class D Notes accrued to the date of such prepayment, plus a premium equal to the greater of:
(i) the product obtained by multiplying (x) the difference obtained - by subtracting from 9.75% the yield rate on United States Treasury Notes due on or about the maturity date for prepayment and payment of the Notes as such yield rate is reported in The Wall Street Journal or other similar publication on Prepayment Price, including the ----------------------- fifth business day preceding the prepayment date name and address of Diomed or, if no yield rate applicable, the paying agent of Diomed, where Class D Notes are to be surrendered for prepayment;
5. a statement advising the Holders that interest will cease to accrue on United States Treasury the Class D Notes is obtainable(or, at in the yield rate case of a partial prepayment, that portion of the issue most closely equivalent to United States Treasury Notes, Class D Notes being called for prepayment) as determined by Mortgagee in its sole discretion and (y) the number of - years and fraction thereof remaining from the prepayment date to the scheduled maturity date of the Notes, and (z) the amount of the prepaid - principal balancePrepayment Date; and
(ii) 1% of the amount of the prepaid principal balance.
(c) On January 15, 1998 and on any day thereafter, upon not less than 30 days' prior written notice and on the condition that Mortgagor is not at the time of such notice or at any time thereafter in default under this Mortgage or the Notes, Mortgagor may prepay the entire (but not less than the entire) aggregate principal amount of the Notes at the time outstanding, at the principal amount so prepaid, together with unpaid interest on the Notes accrued to the date fixed for such prepayment, without premium.
(d) The entire unpaid and outstanding aggregate principal amount of the Notes shall mature and become due and payable on the date fixed for prepayment, together with the applicable premium and interest accrued and unpaid on such date except that any notice of prepayment given by Mortgagor may be withdrawn by Mortgagor, provided that (i) no withdrawal of a prepayment notice -------- - has been made during the preceding 24 months and (ii) all costs and expenses of -- Mortgagee and Mortgagor incurred in connection with such notice of prepayment and such withdrawal, including, without limitation, attorneys' fees, shall have been paid in full and indemnified against by Mortgagor.
(e) Except as specifically set forth in this section 1.05 and in Article 3 of this Mortgage, the Notes may not be prepaid in whole or in part.
Appears in 1 contract
Prepayment of Notes. (a) If The Issuer shall have the Notes are paid right at any time and from time to time, without premium or penalty (but subject to Section 2.16 and the following sentence), to prepay amounts owed under any Note in whole or in part, subject to the requirements of this Section. Each voluntary prepayment of any Note pursuant to this Section 2.11(a) and mandatory prepayment pursuant to Section 2.11(e) shall be made without premium or penalty except that, in the event that on or prior to the ------------------- stated maturity date thereof that is two years after the Closing Date, the Issuer makes any prepayment or repayment of any Notes or, with respect to any Purchaser that does not consent to any amendment to this Agreement to effectuate a Repricing Transaction, the Issuer shall pay to the Administrative Agent, for the ratable account of the applicable Purchasers, a prepayment premium in an amount equal (x) with respect to any reason other than as a result prepayment, repayment or amendment prior to the first anniversary of the Closing Date, 2.00% of (i) a - declaration the amount of the Notes being so prepaid, repaid or acceleration following the occurrence of an Event of Default (as hereinafter defined)refinanced or, (ii) with respect to any non-consenting Purchaser, the application by Mortgagee of any net insurance -- proceeds received by it following any damage to or destruction aggregate amount of the Mortgaged Premises, or (iii) the application by Mortgagee of any net award received by it --- following a Taking (as hereinafter defined) (collectively, a "Non-Voluntary Prepayment"), Mortgagor hereby agrees to pay the premium provided herein and in the Notes. Mortgagor acknowledges that Mortgagee, in making the loan evidenced by the applicable Notes (the "loan") is relying on Mortgagor's creditworthiness and its agreement to repay the Notes in strict accordance with the terms set forth therein. Mortgagor acknowledges that Mortgagee would not make the loan without full and complete assurance by Mortgagor of its agreement to abide by the terms thereof and its further agreement not to voluntarily prepay all or any part of the principal of the Notes outstanding immediately prior to such amendment to effectuate the final maturity date thereofRepricing Transaction, except as set forth herein and in the Notes. Therefore, any prepayment of the Notes other than a Non-Voluntary Prepayment will prejudice Mortgagee's ability to meet its obligations and to earn the return on the funds advanced to Mortgagor, which Mortgagee intended and expected to earn when it agreed to make the loan and will also result in other loss and additional expenses to Mortgagee. Accordingly, in recognition of the foregoing and in consideration of Mortgagee making the loan at the interest rate and for the term set forth in the Notes, Mortgagor hereby expressly (x) waives any and all rights it may have under applicable law to - voluntarily prepay without charge or premium all or any part of the Notes, and (y) agrees that ifwith respect to any prepayment, for any reason other than a Non-Voluntary Prepayment, - prepayment of all repayment or any part amendment on or prior to the second anniversary of the principal Closing Date but on or after the first anniversary of the Closing Date, 1.00% of (i) the amount of the Notes is made being so prepaid, repaid or refinanced or, (ii) with respect to any non-consenting Purchaser, the aggregate amount of the applicable Notes outstanding immediately prior to such amendment to effectuate the Repricing Transaction, as applicable.
(b) [Reserved]
(c) Subject to paragraph (f) of this Section, and unless the Required Purchasers otherwise agree, in the event and on each occasion that any Net Proceeds are received by or on behalf of Mortgagorthe Issuer or any Restricted Subsidiary in respect of any Prepayment Event, the Issuer shall, within five (5) Business Days after such Net Proceeds are received, prepay Notes on a pro rata basis, in each case in an aggregate amount equal to 100% of the amount of such Net Proceeds; provided that in the case of any such event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Issuer or any Restricted Subsidiary applies (or commits pursuant to a binding contractual arrangement (including pursuant to a letter of intent) to apply) the Net Proceeds from such event (or a portion thereof) within twelve (12) months after receipt of such Net Proceeds to reinvest such proceeds in assets of the general type used or useful in the business of the Issuer and its Restricted Subsidiaries (including in connection with an acquisition), then Mortgagor no prepayment shall be required pursuant to this paragraph in respect of such Net Proceeds except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of the twelve-month (or, if committed to be so applied within twelve (12) months of the receipt of such Net Proceeds, eighteen-month) period following receipt of such Net Proceeds, at the end of which period a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided, further, that with respect to any Prepayment Event referenced in paragraph (a) or (b) of the definition thereof, (i) the Issuer shall only be obligated to make any other party making prepayment otherwise required by this paragraph (c) to the extent the aggregate amount of Net Proceeds from all such Prepayment Events, after giving effect to the reinvestment rights set forth herein, exceeds $6,500,000 in any fiscal year of the Issuer, but then from all such Net Proceeds and (ii) the Issuer may use a portion of such Net Proceeds to prepay or repurchase any Indebtedness secured by the Collateral on a pari passu basis with the Liens securing the Obligations (the “Other Applicable Indebtedness”) to the extent required pursuant to the terms of the documentation governing such Other Applicable Indebtedness, in which case, the amount of prepayment required to be made with respect to such Net Proceeds pursuant to this Section 2.11(c) shall be deemed to be the amount equal to the product of (x) the amount of such Net Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of Notes that would otherwise be required to be prepaid pursuant to this paragraph (c) and the denominator of which is the sum of the outstanding principal amount of such Other Applicable Indebtedness required to be prepaid pursuant to the terms of the documents governing such Other Applicable Indebtedness and the outstanding principal amount of Notes required to be prepaid pursuant to this paragraph.
(d) [Reserved].
(e) If the Issuer incurs or issues any Indebtedness not permitted under Section 6.01, the Issuer shall, within five (5) Business Days, prepay the Notes on a pro rata basis in accordance with Section 2.11(g) and in an aggregate amount equal to 100% of the Net Proceeds of such issuance or incurrence (provided such Net Proceeds shall be deemed reduced by an amount equal to the, accrued and unpaid interest, premiums and fees and expenses associated with such principal amount prepaid); provided that such prepayment shall be obligated subject to paythe second sentence of Section 2.11(a).
(f) Notwithstanding any other provisions of this Section 2.11, concurrently therewith(i) to the extent that any of or all the Net Proceeds of any Disposition by a Foreign Subsidiary giving rise to a prepayment pursuant to Section 2.11(c) (a “Foreign Disposition”), the Net Proceeds of any Prepayment Event from a premium Foreign Subsidiary (a “Foreign Prepayment Event”) would (x) give rise to a risk of liability for the directors of such Foreign Subsidiary, (y) be prohibited or delayed by applicable local law (including financial assistance, corporate benefit, restrictions on upstreaming cash intra-group and the fiduciary and statutory duties of directors of the relevant subsidiaries or (z) be restricted by applicable Organizational Documents of any Restricted Subsidiary that is not a wholly owned Subsidiary from being repatriated to the United States, the portion of such Net Proceeds so affected will not be required to be applied to repay Notes at the times provided in Section 2.11(d), or the Issuer shall not be required to make a prepayment at the time provided in Section 2.11(c), as the case may be, and instead, such amounts may be retained by the applicable Foreign Subsidiary (the Issuer hereby agreeing to use commercially reasonable efforts (as determined in the amount set forth belowIssuer’s reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, promptly take all actions reasonably required by the applicable local law or applicable Organizational Document impediment to permit such repatriation), and if within one year following the date on which the respective payment would otherwise have been required, such repatriation of any of such premium shall affected Net Proceeds is permitted under the applicable local law or applicable Organizational Document impediment, such repatriation will be promptly effected and such repatriated Net Proceeds will be promptly (and in any event not later than five (5) Business Days after such repatriation could be made) applied (net of additional taxes, costs and expenses payable or reserved against as a condition result thereof) (whether or not repatriation actually occurs) to the making repayment of the Notes pursuant to this Section 2.11 to the extent provided herein and (ii) to the extent that the Issuer has determined in consultation with the Required Purchasers that repatriation of any of or all the Net Proceeds of any Foreign Disposition, any Foreign Prepayment Event of a Foreign Subsidiary would have a material adverse tax consequence with respect to such Net Proceeds (which for the avoidance of doubt, includes, but is not limited to, any prepayment and shall whereby doing so the Issuer, any Restricted Subsidiary or any of their respective affiliates and/or equity partners would incur a tax liability, including a tax dividend, deemed dividend pursuant to Code Section 956 or a withholding tax), the Net Proceeds so affected may be secured retained by this Mortgagethe applicable Foreign Subsidiary. Without limiting the scope The non-application of any prepayment amounts as a consequence of the foregoing provisionsprovisions will not, the provisions of this paragraph shall constitute both a waiver of any right Mortgagor may have to repay the loan without charge and an agreement by Mortgagor to pay the premium set forth below except in the event of a Non-Voluntary Prepayment, and Mortgagor hereby declares that Mortgagee's agreement to make the loan to Mortgagor at the interest rate and for the term set forth in the Notes constitutes adequate consideration for this waiver and agreement by Mortgagor. Notwithstanding anything contained in this subparagraph to the contraryavoidance of doubt, Mortgagor shall not have the right to voluntarily prepay the Notes prior to June 1, 1993constitute a Default or an Event of Default.
(bg) On June 1, 1993 and on any day thereafter, upon not less than 30 nor more than 60 days' prior written notice to Mortgagee, Mortgagor may, at its option, prepay the entire Each Purchaser may reject all (but not less than all) of its pro rata share of any mandatory prepayment (such declined amounts, the entire“Declined Proceeds”) aggregate of Notes required to be made pursuant to clause (c) of this Section 2.11 by providing notice to the Administrative Agent at or prior to the time of such prepayment. Any Declined Proceeds remaining after offering such Declined Proceeds to the lenders under the Second Lien Credit Agreement in accordance with the terms of the Second Lien Credit Agreement thereafter shall be retained by the Issuer.
(h) The Issuer shall notify the Administrative Agent in writing of any prepayment hereunder not later than 1:00 p.m., New York City time, three (3) Business Days before the date of the proposed prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of Notes to be prepaid and, in the Notes at case of a mandatory prepayment, a reasonably detailed calculation of the time outstanding, at the principal amount so prepaid, together with unpaid interest on the Notes accrued to the date of such prepayment, plus provided that a premium equal notice of optional prepayment may state that such notice is conditional upon the consummation of an acquisition or sale transaction or upon the effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other Indebtedness or the occurrence of any other specified event, in which case such notice of prepayment may be revoked by the Issuer (by notice to the greater of:Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Purchasers of the contents thereof. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.13 and any prepayment fees required by Section 2.11(a), to the extent applicable.
(i) the product obtained by multiplying [Reserved]
(xj) the difference obtained - by subtracting from 9.75% the yield rate on United States Treasury Notes due on or about the maturity date Notwithstanding any of the Notes as such yield rate is reported in The Wall Street Journal or other similar publication on the ----------------------- fifth business day preceding the prepayment date orprovisions of this Section 2.11, if no yield rate on United States Treasury any prepayment of Eurocurrency Notes is obtainablerequired to be made under this Section 2.11, at prior to the yield rate last day of the issue most closely equivalent Interest Period therefor, in lieu of making any payment pursuant to United States Treasury Notesthis Section 2.11 in respect of any such Eurocurrency Note prior to the last day of the Interest Period therefor, as determined by Mortgagee the Issuer may, in its sole discretion and (y) discretion, deposit with the number of - years and fraction thereof remaining from Administrative Agent in the prepayment date to the scheduled maturity date of the Notes, and (z) currency in which such Note is denominated the amount of any such prepayment otherwise required to be made hereunder until the prepaid - principal balance; and
(ii) 1% of the amount of the prepaid principal balance.
(c) On January 15, 1998 and on any last day thereafter, upon not less than 30 days' prior written notice and on the condition that Mortgagor is not at the time of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from the Issuer or any other Note Party) to apply such amount to the prepayment of such Notes in accordance with this Section 2.11. Such deposit shall constitute cash collateral for the Eurocurrency Notes to be so prepaid; provided that the Issuer may at any time thereafter in default under this Mortgage or the Notes, Mortgagor may prepay the entire (but not less than the entire) aggregate principal amount of the Notes at the time outstanding, at the principal amount so prepaid, together with unpaid interest on the Notes accrued direct that such deposit be applied to the date fixed for such prepayment, without premium.
(d) The entire unpaid and outstanding aggregate principal amount of the Notes shall mature and become due and payable on the date fixed for prepayment, together with make the applicable premium and interest accrued and unpaid on such date except that any notice of prepayment given by Mortgagor may be withdrawn by Mortgagor, provided that (i) no withdrawal of a prepayment notice -------- - has been made during the preceding 24 months and (ii) all costs and expenses of -- Mortgagee and Mortgagor incurred in connection with such notice of prepayment and such withdrawal, including, without limitation, attorneys' fees, shall have been paid in full and indemnified against by Mortgagorpayment required pursuant to this Section 2.11.
(e) Except as specifically set forth in this section 1.05 and in Article 3 of this Mortgage, the Notes may not be prepaid in whole or in part.
Appears in 1 contract
Samples: First Lien Note Purchase Agreement (KC Holdco, LLC)