Terms of All Prepayments. 1.6.3.1. Unless expressly set forth otherwise, all partial prepayments of the Loans shall be applied to the outstanding Loans ratably and as set forth in Section 7.02. 1.6.3.2. Each prepayment of Loans shall be accompanied by payment of all accrued interest on the amount prepaid, the Prepayment Premium (other than in the case of Sections 2.06(b)(i), 2.06(b)(ii) and 2.06(b)(v) above) and any additional amounts required pursuant to Section 2.11. 0.0.0.0. Xx later than ten (10) Business Days after receiving a Material Project Documents Prepayment Offer, an Event of Loss Prepayment Offer, a Disposition Proceeds Prepayment Offer or a Debt Prepayment Offer (the expiration of such ten (10) Business Day-period, the “Prepayment Offer Deadline”), each Lender shall advise Borrower in writing whether it has elected to accept such prepayment offer, which it shall determine in its sole discretion; provided that any Lender which shall fail to so advise Borrower by the Prepayment Offer Deadline shall have been deemed to have accepted such prepayment offer. Each of the Lenders shall have the right, but not the obligation, to accept or reject its pro rata portion of the prepayment offer by Borrower. Borrower shall have no obligation to prepay any amounts in respect of any declining Xxxxxx’s pro rata portion of the prepayment offer. In connection with any prepayment pursuant to Section 2.06(b)(i), (ii), (iii) and/or (iv), the amount of the Loan prepaid shall be calculated so that the total amount of Loans prepaid, the accrued but unpaid interest on such Loans and any Prepayment Premium applicable to such prepayment of Loans shall be no more than the Net Available Amount. 0.0.0.0. Xx is understood and agreed that if the Obligations are accelerated, otherwise become due prior to the Maturity Date or are still outstanding as of the Maturity Date, in each case, in respect of any Event of Default (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event (including the acceleration of claims by operation of law)), the Prepayment Premium that would have applied if, at the -53- US-DOCS\150507763.9 Bakersfield Refinery – Senior Credit Agreement |US-DOCS\150507763.15|| time of such acceleration, Borrower had prepaid, refinanced, substituted or replaced any or all of the Loan as contemplated in Section 2.06(a) (any such event, a “Prepayment Premium Event”), will also be due and payable without any further action (including any notice requirements otherwise applicable to Prepayment Premium Events, if any) as though a Prepayment Premium Event had occurred and such Prepayment Premium shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. Any Prepayment Premium payable above shall be presumed to be the liquidated damages sustained by each Lender as the result of the early termination and Borrower agrees that it is reasonable under the circumstances currently existing. The Prepayment Premium 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. EACH LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) (ON BEHALF OF ITSELF AND THE OTHER LOAN PARTIES) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS, OR MAY PROHIBIT, THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. Each Loan Party expressly agrees (to the fullest extent that each may lawfully do so) that: (A) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Prepayment Premium; and (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.06(c)(iv). Each Loan Party expressly acknowledges that its agreement to pay the Prepayment Premium to Lenders as herein described is a material inducement to Lenders to provide the Commitments and make the Loans contemplated hereby. The Borrower acknowledges, and the parties hereto agree, that each Lender has the right to maintain its investment in the Loans free from repayment by the Borrower (except as herein specifically provided for) and that the provision for payment of a Prepayment Premium by the Borrower, in the event that the Loans are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances. 1.6.3.5. Each party hereto acknowledges and agrees that Loans of a particular Lender shall be prepaid pursuant to Section 2.06(a) or Section 2.06(b) (as applicable) in the order in which such Loans were made or acquired by such Lender pursuant to Section 2.01.
Appears in 2 contracts
Samples: Credit Agreement (Global Clean Energy Holdings, Inc.), Credit Agreement (Global Clean Energy Holdings, Inc.)
Terms of All Prepayments. 1.6.3.1. Unless expressly set forth otherwise, all (i) All partial prepayments by an Issuer of the Loans respective Notes shall be applied on a pro rata basis to the outstanding Loans ratably and as set forth in Section 7.02Senior Secured Notes of all Purchasers of Notes issued by that Issuer or who have accepted their ECF Prepayment Offer.
1.6.3.2. (ii) Each prepayment of Loans Notes (other than Supplemental Notes) shall be accompanied by payment of all accrued interest on the amount prepaid, the Prepayment Premium (other than in the case of Sections 2.06(b)(iSection 2.05(b), 2.06(b)(ii) and 2.06(b)(v) above) and any additional amounts required pursuant to Section 2.112.09. Each prepayment of Supplemental Notes shall be accompanied by payment of all accrued interest on the amount prepaid, and with respect to any such prepayment made on or prior to the date that is 3 months after the Supplemental Notes Issuance Date, shall, be accompanied by the Supplemental Notes Make-Whole Amount and any additional amounts required pursuant to Section 2.09. For the avoidance of doubt, with respect to any prepayment offer, the Issuers shall prepay the applicable Notes no later than three (3) Business Days after the Purchasers accept (or are deemed to accept) such prepayment offer pursuant to Section 2.05(c)(iii).
0.0.0.0. Xx (iii) No later than ten (10) Business Days after receiving a Material Project Documents Prepayment Offer, an Event of Loss Prepayment Offer, a Disposition Proceeds Prepayment Offer or a Debt ECF Prepayment Offer (the expiration of such ten (10) Business Day-period, the “Prepayment Offer Deadline”), each Lender Purchaser shall advise Borrower the Company in writing whether it has elected to accept such prepayment offer, which it shall determine in its sole discretion; provided that any Lender Purchaser which shall fail to so advise Borrower the Company by the Prepayment Offer Deadline shall have been deemed to have accepted such prepayment offer. Each of the Lenders Purchasers shall have the right, but not the obligation, to accept or reject its pro rata portion of the prepayment offer by Borrowerthe applicable Issuer. Borrower The Issuers shall have no obligation to prepay any amounts in respect of any declining XxxxxxPurchaser’s pro rata portion of the prepayment offer. In connection with any prepayment pursuant to Section 2.06(b)(i), (ii), (iii) and/or .
(iv), the amount of the Loan prepaid shall be calculated so that the total amount of Loans prepaid, the accrued but unpaid interest on such Loans and any Prepayment Premium applicable to such prepayment of Loans shall be no more than the Net Available Amount.
0.0.0.0. Xx ) It is understood and agreed that if the Obligations are accelerated, accelerated or otherwise become due and owing prior to the Maturity Date or are still outstanding as of the Maturity Date, in each case, in respect as a result of any Event of Default (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event (including the acceleration of claims by operation of law)), the Prepayment Premium and Minimum Return that would have applied and be payable if, at the -53- US-DOCS\150507763.9 Bakersfield Refinery – Senior Credit Agreement |US-DOCS\150507763.15|| time of such acceleration, Borrower the relevant Issuer had prepaid, refinanced, substituted or replaced any or all of the Loan Notes (other than Supplemental Notes) as contemplated in Section 2.06(a2.05(a) (any such event, a “Prepayment Premium Event”), will also be due and payable without any further action (including any notice requirements otherwise applicable to Prepayment Premium Events, if any) as though a Prepayment Premium Event had occurred and such Prepayment Premium or Minimum Return, as applicable, shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each LenderPurchaser’s lost profits as a result thereof. Any Prepayment Premium or Minimum Return payable above shall be presumed to be the liquidated damages sustained by each Lender Purchaser as the result of the early termination and Borrower Issuer agrees that it is reasonable under the circumstances currently existing. The Prepayment Premium and Minimum Return 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. EACH LOAN NOTE PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) (ON BEHALF OF ITSELF AND THE OTHER LOAN NOTE PARTIES) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS, OR MAY PROHIBIT, THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM OR MINIMUM RETURN IN CONNECTION WITH ANY SUCH ACCELERATION. Each Loan Note Party expressly agrees (to the fullest extent that each may lawfully do so) that: (A) the Prepayment Premium and Minimum Return is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Prepayment Premium and Minimum Return 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 Purchasers and the Loan Note Parties giving specific consideration in this transaction for such agreement to pay the Prepayment PremiumPremium and Minimum Return; and (D) the Loan Parties parties hereto shall be estopped hereafter from claiming differently than as agreed to in this Section 2.06(c)(iv2.05(c)(iv). Each Loan Note Party expressly acknowledges that its agreement to pay the Prepayment Premium and Minimum Return to Lenders Purchasers as herein described is a material inducement to Lenders Purchasers to provide the Commitments and make purchase the Loans Notes contemplated hereby. The Borrower acknowledgesIssuers acknowledge, and the parties hereto agree, that each Lender Purchaser has the right to maintain its investment in the Loans Notes free from repayment by the Borrower any Issuer (except as herein specifically provided for) and that the provision for payment of a Prepayment Premium and Minimum Return by the Borrowerrelevant Issuer, in the event that the Loans Notes are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances.
1.6.3.5(v) It is understood and agreed that if the Obligations are accelerated or otherwise become due and owing prior to the date that is 3 months after the Supplemental Note Issuance Date, in each case, as a result of any Event of Default (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event (including the acceleration of claims by operation of law)), the Supplemental Note Make-Whole that would have applied and be payable if a Prepayment Premium Event had occurred, will also be due and payable without any further action (including any notice requirements otherwise applicable to Prepayment Premium Events, if any) as though a Prepayment Premium Event had occurred and such Supplemental Note Make-Whole shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Purchaser’s lost profits as a result thereof. Any Supplemental Note Make-Whole payable above shall be presumed to be the liquidated damages sustained by each Purchaser as the result of the early termination and Issuer agrees that it is reasonable under the circumstances currently existing. The Supplemental Note Make-Whole 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. EACH NOTE PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) (ON BEHALF OF ITSELF AND THE OTHER NOTE PARTIES) THE PROVISIONS OF ANY STATUTE OR LAW THAT PROHIBITS, OR MAY PROHIBIT, THE COLLECTION OF THE FOREGOING SUPPLEMENTAL NOTE MAKE-WHOLE IN CONNECTION WITH ANY SUCH ACCELERATION. Each party Note Party expressly agrees (to the fullest extent that each may lawfully do so) that: (A) the Supplemental Note Make-Whole is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Supplemental Note Make-Whole shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Purchasers and the Note Parties giving specific consideration in this transaction for such agreement to pay the Supplemental Note Make-Whole; and (D) the parties hereto shall be estopped hereafter from claiming differently than as agreed to in this Section 2.05(c)(v). Each Note Party expressly acknowledges that its agreement to pay the Supplemental Note Make-Whole to Purchasers as herein described is a material inducement to Purchasers to provide the Commitments and agrees purchase the Notes contemplated hereby. Issuers acknowledge, and the parties hereto agree, that Loans each Purchaser has the right to maintain its investment in the Notes free from repayment by any Issuer (except as herein specifically provided for) and that the provision for payment of a particular Lender shall be prepaid pursuant to Section 2.06(a) or Section 2.06(b) (as applicable) Supplemental Note Make-Whole by the relevant Issuer, in the order in which event that the Notes are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such Loans were made or acquired by right under such Lender pursuant to Section 2.01circumstances.
Appears in 1 contract
Samples: Note Purchase Agreement (Gauzy Ltd.)
Terms of All Prepayments. 1.6.3.1(i) With respect to any prepayment of any Advance, whether such prepayment is voluntary or mandatory, including a prepayment upon acceleration, the Borrower shall comply with all applicable terms and provisions of this Agreement and the FFB Documents. Unless expressly set forth otherwiseAll prepayment amounts shall be applied solely to the Guaranteed Loan or, where applicable as specified herein, to the Guaranteed Loan and the Cerberus Loan, Ratably, and may not be applied to prepayments of any other Permitted Indebtedness.
(ii) The Borrower may not re-borrow the principal amount of any Advance that is prepaid, nor shall any such prepayment create availability for further borrowings during the Availability Period.
(iii) Simultaneously with all partial prepayments of the Loans Advances under the Guaranteed Loan, whether voluntary or mandatory, the Borrower shall be applied to the outstanding Loans ratably and as set forth in Section 7.02.
1.6.3.2. Each prepayment of Loans shall be accompanied by payment of pay all accrued interest and other fees, costs, expenses and other Secured Obligations then outstanding under the Financing Documents. Any prepayments of the Advances under the Guaranteed Loan in full shall require payment in full of all other Secured Obligations.
(iv) If the Borrower fails to make a prepayment to FFB on any Intended Prepayment Date in accordance with this Agreement and the amount prepaidFFB Note, the Borrower shall pay FFB a Late Charge on any Overdue Amount from such Intended Prepayment Premium Date to the date on which payment is made, computed in accordance with the provisions of the FFB Note.
(other than in the case of Sections 2.06(b)(i), 2.06(b)(iiv) and 2.06(b)(v) above) and any additional amounts required Any prepayment made pursuant to this Section 2.11.
0.0.0.0. Xx later than ten 3.05 (10Prepayments) Business Days after receiving a Material Project Documents Prepayment Offer, an Event of Loss Prepayment Offer, a Disposition Proceeds Prepayment Offer or a Debt Prepayment Offer (the expiration of such ten (10) Business Day-period, the “Prepayment Offer Deadline”), each Lender shall advise Borrower in writing whether it has elected to accept such prepayment offer, which it shall determine in its sole discretion; provided that any Lender which shall fail to so advise Borrower by the Prepayment Offer Deadline shall have been deemed to have accepted such prepayment offer. Each of the Lenders shall have the right, but not the obligation, to accept or reject its pro rata portion of the prepayment offer by Borrower. Borrower shall have no obligation to prepay any amounts in respect of any declining Xxxxxx’s pro rata portion of the prepayment offer. In connection with any prepayment pursuant to Section 2.06(b)(i), (ii), (iii) and/or (iv), the amount of the Loan prepaid shall be calculated so that the total amount of Loans prepaid, the accrued but unpaid interest on such Loans and any Prepayment Premium applicable to such prepayment of Loans shall be no more than the Net Available Amount.
0.0.0.0. Xx is understood and agreed that if the Obligations are accelerated, otherwise become due prior to the Maturity Date or are still outstanding as of the Maturity Date, in each case, in respect of any Event of Default (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event (including the acceleration of claims by operation of law)), the Prepayment Premium that would have applied if, at the -53- US-DOCS\150507763.9 Bakersfield Refinery – Senior Credit Agreement |US-DOCS\150507763.15|| time of such acceleration, Borrower had prepaid, refinanced, substituted or replaced any or all of the Loan as contemplated in Section 2.06(a) (any such event, a “Prepayment Premium Event”), will also be due and payable without any further action (including any notice requirements otherwise applicable to Prepayment Premium Events, if any) as though a Prepayment Premium Event had occurred and such Prepayment Premium shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. Any Prepayment Premium payable above shall be presumed to be the liquidated damages sustained by each Lender as the result of the early termination and Borrower agrees that it is reasonable under the circumstances currently existing. The Prepayment Premium 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. EACH LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) (ON BEHALF OF ITSELF AND THE OTHER LOAN PARTIES) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS, OR MAY PROHIBIT, THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. Each Loan Party expressly agrees (to the fullest extent that each may lawfully do so) that: (A) applied on a pro rata basis to each Tranche (except as otherwise agreed by DOE and the Prepayment Premium is reasonable and is Borrower); provided that prepayment proceeds received in connection with a specific Line pursuant to clause (B), (D), (E), (I), (J), (K), or (M) of Section 3.05(c)(i) (Mandatory Prepayments) shall be applied solely to the product of an arm’s length transaction between sophisticated business people, ably represented by counselRelevant Tranche; (B) applied to the specific Advances identified by the Borrower in accordance with the FFB Documents and specified in the relevant Prepayment Premium Election Notice, which notice shall be payable notwithstanding specify if the then prevailing market rates at the time payment prepayment is madevoluntary or mandatory; (C) there has been a course applied in the inverse order of conduct between Lenders and maturity among the Loan Parties giving specific consideration in this transaction for outstanding principal amounts of such agreement to pay the Prepayment PremiumAdvances; and (D) due in an amount equal to the Loan Parties Prepayment Price calculated by FFB in accordance with the terms of the FFB Note.
(vi) Any prepayment pursuant to this Section 3.05 (Prepayments) shall be estopped hereafter from claiming differently than as agreed due in an amount equal to in this Section 2.06(c)(iv). Each Loan Party expressly acknowledges that its agreement to pay the Prepayment Premium to Lenders as herein described is a material inducement to Lenders to provide Price determined in accordance with the Commitments terms of the FFB Note and make on the Loans contemplated hereby. The Borrower acknowledges, and the parties hereto agree, that each Lender has the right to maintain its investment Intended Prepayment Date specified in the Loans free from repayment by relevant Prepayment Election Notice (it being understood that FFB’s calculation of the Borrower (except as herein specifically provided for) and that Prepayment Price of the provision for payment of a Prepayment Premium by the BorrowerFFB Note and/or any components thereof shall, in the event that the Loans are prepaid or are accelerated as a result absence of an Event of Defaultmanifest error, is intended to provide compensation for the deprivation of such right under such circumstancesbe determinative and binding).
1.6.3.5. Each party hereto acknowledges and agrees that Loans (vii) In the event of any prepayment in full of all outstanding Advances under a particular Lender Tranche pursuant to this Section 3.05 (Prepayments), on or prior to the last day of the Availability Period, the remaining Guaranteed Loan Commitment Amount for such Tranche shall be prepaid pursuant deemed to Section 2.06(a) or Section 2.06(b) be reduced to zero Dollars (as applicable) in the order in which such Loans were made or acquired $0), unless otherwise agreed to by such Lender pursuant to Section 2.01DOE.
Appears in 1 contract
Samples: Loan Guarantee Agreement (Eos Energy Enterprises, Inc.)
Terms of All Prepayments. 1.6.3.1. Unless expressly set forth otherwise, all (i) All partial prepayments by an Issuer of the Loans respective Notes shall be applied on a pro rata basis to the outstanding Loans ratably French Senior Secured Notes and to any other type of Senior Secured Notes, as set forth in Section 7.02applicable.
1.6.3.2. (ii) Each prepayment of Loans Notes shall be accompanied by payment of all accrued interest on the amount prepaid, the Prepayment Premium MOIC Amount (other than in the case of Sections 2.06(b)(iif any), 2.06(b)(ii) and 2.06(b)(v) above) Exit Fee and any additional amounts required pursuant to Section 2.11.
0.0.0.02.10. Xx later than ten (10) Business Days after receiving a Material Project Documents Prepayment OfferNotwithstanding the foregoing, an Event of Loss Prepayment Offer, a Disposition Proceeds Prepayment Offer or a Debt Prepayment Offer (the expiration of such ten (10) Business Day-period, the “Prepayment Offer Deadline”), each Lender shall advise Borrower it is agreed that in writing whether it has elected to accept such prepayment offer, which it shall determine in its sole discretion; provided that any Lender which shall fail to so advise Borrower by the Prepayment Offer Deadline shall have been deemed to have accepted such prepayment offer. Each of the Lenders shall have the right, but not the obligation, to accept or reject its pro rata portion of the prepayment offer by Borrower. Borrower shall have no obligation to prepay any amounts in respect of any declining Xxxxxx’s pro rata portion of the prepayment offer. In connection with any prepayment of the principal amount of the Notes pursuant to Section 2.06(b)(i), the aggregate amount of interest, Exit Fee and Prepayment Premium MOIC Amount accrued in respect of such Notes shall be paid on the following dates: (ii), A) 33.33% (one third) - on the prepayment date specified in the Purchaser’s notice; (B) 33.33% (one third) – within 60 days following the foregoing prepayment date; and (C) 33.33% (one third) – within 120 days following the foregoing prepayment date.
(iii) and/or [Reserved].
(iv), the amount of the Loan prepaid shall be calculated so that the total amount of Loans prepaid, the accrued but unpaid interest on such Loans and any Prepayment Premium applicable to such prepayment of Loans shall be no more than the Net Available Amount.
0.0.0.0. Xx ) It is understood and agreed that if the Obligations are accelerated, accelerated or otherwise become due and owing prior to the Maturity Date or are still outstanding as of the Maturity Date, in each case, in respect as a result of any Event of Default (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event (including the acceleration of claims by operation of law)), the Prepayment Premium MOIC Amount that would have applied and be payable if, at the -53- US-DOCS\150507763.9 Bakersfield Refinery – Senior Credit Agreement |US-DOCS\150507763.15|| time of such acceleration, Borrower the relevant Issuer had prepaid, refinanced, substituted or replaced any or all of the Loan Notes as contemplated in Section 2.06(a) (any such event, a “Prepayment Premium Event”), will also be due and payable without any further action (including any notice requirements otherwise applicable to Prepayment Premium Events, if any) as though a Prepayment Premium Event had occurred and such Prepayment Premium MOIC Amount, as applicable, shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each LenderPurchaser’s lost profits as a result thereof. Any Prepayment Premium MOIC Amount payable above shall be presumed to be the liquidated damages sustained by each Lender Purchaser as the result of the early termination and Borrower Issuer agrees that it is reasonable under the circumstances currently existing. The Prepayment Premium MOIC 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. EACH LOAN NOTE PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) (ON BEHALF OF ITSELF AND THE OTHER LOAN NOTE PARTIES) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS, OR MAY PROHIBIT, THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM MOIC AMOUNT IN CONNECTION WITH ANY SUCH ACCELERATION. Each Loan Note Party expressly agrees (to the fullest extent that each may lawfully do so) that: (A) the Prepayment Premium MOIC Amount is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Prepayment Premium MOIC Amount 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 Purchasers and the Loan Note Parties giving specific consideration in this transaction for such agreement to pay the Prepayment PremiumPremium MOIC Amount; and (D) the Loan Parties parties hereto shall be estopped hereafter from claiming differently than as agreed to in this Section 2.06(c)(iv). Each Loan Note Party expressly acknowledges that its agreement to pay the Prepayment Premium MOIC Amount to Lenders Purchasers as herein described is a material inducement to Lenders Purchasers to provide the Commitments and make purchase the Loans Notes contemplated hereby. The Borrower acknowledgesIssuers acknowledge, and the parties hereto agree, that each Lender Purchaser has the right to maintain its investment in the Loans Notes free from repayment by the Borrower any Issuer (except as herein specifically provided for) and that the provision for payment of a the Prepayment Premium MOIC Amount by the Borrowerrelevant Issuer, in the event that the Loans Notes are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances.
1.6.3.5. Each party hereto acknowledges and agrees that Loans of a particular Lender shall be prepaid pursuant to Section 2.06(a) or Section 2.06(b) (as applicable) in the order in which such Loans were made or acquired by such Lender pursuant to Section 2.01.
Appears in 1 contract
Samples: Note Purchase Agreement (Gauzy Ltd.)
Terms of All Prepayments. 1.6.3.1. Unless expressly set forth otherwise, all (i) All partial prepayments of the Loans shall be applied applied, on a pro rata basis to the outstanding Loans ratably and as set forth in Section 7.02of each Lender.
1.6.3.2. (ii) Each prepayment of Loans shall be accompanied by payment of all accrued interest on the amount prepaid, the Prepayment Premium (other than in the case of Sections 2.06(b)(i)Premium, 2.06(b)(ii) and 2.06(b)(v) above) if any, and any additional amounts required pursuant to Section 2.112.09; provided that no Prepayment Premium shall be due in respect of any prepayment under Section 2.05(a)(ii), Section 2.05(b)(iv), Section 2.05(b)(vi) or Section 2.05(b)(vii).
0.0.0.0. Xx (iii) No later than ten (10) Business Days after receiving a Material Project Documents Prepayment Offer, an Event of Loss Prepayment Offer, a Disposition Proceeds Prepayment Offer or Offer, a Debt Prepayment Offer (the expiration of such ten (10) Business Day-period, the “or an ECF Prepayment Offer Deadline”)Offer, each Lender shall advise the Borrower in writing whether it has elected to accept such prepayment offer, which it shall determine in its sole and absolute discretion; provided that any Lender which shall fail to so advise Borrower by the Prepayment Offer Deadline shall have been deemed to have accepted such prepayment offer. Each of the Lenders shall have the right, but not the obligation, to accept or reject its pro rata portion of the such prepayment offer by the Borrower. Borrower shall have no obligation to prepay any amounts in respect of any declining Xxxxxx’s pro rata portion of the prepayment offer. In connection with any prepayment pursuant to Section 2.06(b)(i), (ii), (iii2.05(b)(i) and/or (iv2.05(b)(ii), the amount of the Loan Loans prepaid shall be calculated so that the total amount of Loans prepaid, the accrued but unpaid interest on such Loans and any Prepayment Premium applicable to such prepayment of Loans shall be no more than the Net Available Amount.
0.0.0.0. Xx (iv) It is understood and agreed that if the Obligations are accelerated, accelerated or otherwise become due prior to the Maturity Date or are still outstanding as of the Maturity Datetheir maturity date, in each case, in respect of any Event of Default (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event (including the acceleration of claims by operation of law)), the Prepayment Premium that would have applied if, at the -53- US-DOCS\150507763.9 Bakersfield Refinery – Senior Credit Agreement |US-DOCS\150507763.15|| time of such acceleration, Borrower had prepaid, refinanced, substituted or replaced any or all of the Loan Loans as contemplated in Section 2.06(a2.05(a)(i) (any such event, a “Prepayment Premium Event”), will also be due and payable without any further action (including including, without limitation, any notice requirements otherwise applicable to Prepayment Premium Events, if any) as though a Prepayment Premium Event had occurred and such Prepayment Premium shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. Any Prepayment Premium payable above shall be presumed to be the liquidated damages sustained by each Lender as the result of the early termination and Borrower agrees that it is reasonable under the circumstances currently existing. The Prepayment Premium 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. EACH LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) (ON BEHALF OF ITSELF AND THE OTHER LOAN PARTIES) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS, PROHIBITS OR MAY PROHIBIT, PROHIBIT THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. Each Loan Party expressly agrees (to the fullest extent that each may lawfully do so) that: (A) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Prepayment Premium; and (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.06(c)(iv)paragraph. Each Loan Party expressly acknowledges that its agreement to pay the Prepayment Premium to Lenders as herein described is a material inducement to Lenders to provide the Commitments and make the Loans contemplated hereby. The Borrower acknowledges, and the parties hereto agree, that each Lender has the right to maintain its investment in the Loans free from repayment by the Borrower (except as herein specifically provided for) and that the provision for payment of a Prepayment Premium by the Borrower, in the event that the Loans are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstancesLoan.
1.6.3.5. Each party hereto acknowledges and agrees that Loans of a particular Lender shall be prepaid pursuant to Section 2.06(a) or Section 2.06(b) (as applicable) in the order in which such Loans were made or acquired by such Lender pursuant to Section 2.01.
Appears in 1 contract
Terms of All Prepayments. 1.6.3.1. Unless expressly set forth otherwise, all (i) All partial prepayments of the Loans shall be applied on a pro rata basis to the outstanding Loans ratably and as set forth Loan of all Lenders, provided that such pro rata allocation shall, in the case of Section 7.022.06(b)(i) only occur in respect of the Lenders who have accepted their respective applicable ECF Prepayment Offers.
1.6.3.2. (ii) Each prepayment of Loans shall be accompanied by payment of all accrued interest on the amount prepaid, the Prepayment Premium (other than in the case of Sections Section 2.06(b)(i), 2.06(b)(ii) and 2.06(b)(v) above) and any additional amounts required pursuant to Section 2.11.
0.0.0.0. Xx (iii) No later than ten (10) Business Days after receiving a Material Project Documents Prepayment Offer, an Event of Loss Prepayment Offer, a Disposition Proceeds Prepayment Offer or a Debt ECF Prepayment Offer (the expiration of such ten (10) Business Day-period, the “Prepayment Offer Deadline”), each Lender shall advise Borrower in writing whether it has elected to accept such prepayment offer, which it shall determine in its sole discretion; provided that any Lender which shall fail to so advise Borrower by the Prepayment Offer Deadline shall have been deemed to have accepted such prepayment offer. Each of the Lenders shall have the right, but not the obligation, to accept or reject its pro rata portion of the prepayment offer by Borrower. Borrower shall have no obligation to prepay any amounts in respect of any declining XxxxxxLender’s pro rata portion of the prepayment offer. In connection with any prepayment pursuant to Section 2.06(b)(i), (ii), (iii) and/or .
(iv), the amount of the Loan prepaid shall be calculated so that the total amount of Loans prepaid, the accrued but unpaid interest on such Loans and any Prepayment Premium applicable to such prepayment of Loans shall be no more than the Net Available Amount.
0.0.0.0. Xx ) It is understood and agreed that if the Obligations are accelerated, accelerated or otherwise become due prior to the Maturity Date or are still outstanding as of the Maturity Datetheir maturity date, in each case, in respect of any Event of Default (including, but not limited to, upon the occurrence of a bankruptcy or insolvency 30 Bakersfield Refinery - HoldCo Credit Agreement event (including the acceleration of claims by operation of law)), the Prepayment Premium that would have applied if, at the -53- US-DOCS\150507763.9 Bakersfield Refinery – Senior Credit Agreement |US-DOCS\150507763.15|| time of such acceleration, Borrower had prepaid, refinanced, substituted or replaced any or all of the Loan as contemplated in Section 2.06(a) (any such event, a “Prepayment Premium Event”), will also be due and payable without any further action (including any notice requirements otherwise applicable to Prepayment Premium Events, if any) as though a Prepayment Premium Event had occurred and such Prepayment Premium shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. Any Prepayment Premium payable above shall be presumed to be the liquidated damages sustained by each Lender as the result of the early termination and Borrower agrees that it is reasonable under the circumstances currently existing. The Prepayment Premium 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. EACH LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) (ON BEHALF OF ITSELF AND THE OTHER LOAN PARTIES) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS, OR MAY PROHIBIT, THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. Each Loan Party expressly agrees (to the fullest extent that each may lawfully do so) that: (A) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Prepayment Premium; and (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.06(c)(iv). Each Loan Party expressly acknowledges that its agreement to pay the Prepayment Premium to Lenders as herein described is a material inducement to Lenders to provide the Commitments and make the Loans contemplated hereby. The Borrower acknowledges, and the parties hereto agree, that each Lender has the right to maintain its investment in the Loans free from repayment by the Borrower (except as herein specifically provided for) and that the provision for payment of a Prepayment Premium by the Borrower, in the event that the Loans are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances.
1.6.3.5. (v) Each party hereto acknowledges and agrees that Loans of a particular Lender shall be prepaid pursuant to Section 2.06(a) or Section 2.06(b) (as applicable) in the order in which such Loans were made or acquired by such Lender pursuant to Section 2.01.
Appears in 1 contract
Samples: Credit Agreement (Global Clean Energy Holdings, Inc.)
Terms of All Prepayments. 1.6.3.1. Unless expressly set forth otherwise, all partial prepayments of i. Upon the Loans shall be applied to the outstanding Loans ratably and as set forth in Section 7.02.
1.6.3.2. Each prepayment of Loans any Loan (whether such prepayment is an Optional Prepayment or a Mandatory Prepayment), Co-Borrowers shall be accompanied by payment pay to Administrative Agent for the account of each Lender which made such Loan (A) all accrued interest to the date of such prepayment on the principal amount of such Loan prepaid, (B) all accrued fees to the Prepayment date of such prepayment relating to the principal amount of such Loan being prepaid, (C) the applicable Call Premium determined for the prepayment date with respect to such Loan prepaid, if any, and (D) if such prepayment is the prepayment of a LIBOR LC Loan on a day other than in the case last day of Sections 2.06(b)(i)an Interest Period for such LIBOR LC Loan, 2.06(b)(ii) and 2.06(b)(v) above) and any additional amounts required all Liquidation Costs incurred by each such Lender as a result of such prepayment (pursuant to the terms of Section 2.112.9).
0.0.0.0. Xx later than ten (10A) Business Days after receiving All Optional Prepayments shall be applied, on a Material Project Documents Prepayment Offerpro rata basis, an Event (x) to prepay outstanding Construction Loans, (y) to reduce the remaining payments of Loss Prepayment OfferTerm Loans required under Section 2.1.2(d) in such order as the Co-Borrowers may specify or, a Disposition Proceeds Prepayment Offer or a Debt Prepayment Offer (the expiration of if no such ten (10) Business Day-period, the “Prepayment Offer Deadline”), each Lender shall advise Borrower in writing whether it has elected to accept such prepayment offer, which it shall determine in its sole discretion; provided that any Lender which shall fail to so advise Borrower order is specified by the Prepayment Offer Deadline shall have been deemed to have accepted such prepayment offer. Each Co-Borrowers, in direct order of the Lenders shall have the rightmaturity, but not the obligation, to accept or reject its pro rata portion of the prepayment offer by Borrower. Borrower shall have no obligation (z) to prepay any amounts in respect of any declining Xxxxxx’s pro rata portion of the prepayment offer. In connection with any prepayment pursuant to Section 2.06(b)(i), (ii), (iii) and/or (iv), the amount of the Loan prepaid shall be calculated so that the total amount of Loans prepaid, the accrued but unpaid interest on such Loans and any Prepayment Premium applicable to such prepayment of Loans shall be no more than the Net Available Amount.
0.0.0.0. Xx is understood and agreed that if the Obligations are accelerated, otherwise become due prior to the Maturity Date or are still outstanding as of the Maturity DateLC Loans, in each case, together with (1) accrued but unpaid interest and the applicable Call Premium payable in respect of any Event of Default connection with such prepayment and (including2) amounts payable pursuant to Section 2.9 in connection with such prepayment, but not limited to, upon the occurrence of a bankruptcy or insolvency event (B) except as otherwise specifically set forth herein (including the acceleration of claims by operation of law)in clause (c)(i) below), any Mandatory Prepayment shall be applied, on a pro rata basis, to prepay outstanding Construction Loans or to reduce the Prepayment Premium that would have applied ifremaining payments of Term Loans required under Section 2.1.2(d) in inverse order of maturity, at the -53- US-DOCS\150507763.9 Bakersfield Refinery – Senior Credit Agreement |US-DOCS\150507763.15|| time of such acceleration, Borrower had prepaid, refinanced, substituted or replaced any or all of the Loan as contemplated in Section 2.06(atogether with (x) (any such event, a “Prepayment Premium Event”), will also be due accrued but unpaid interest and payable without any further action (including any notice requirements otherwise applicable to Prepayment Premium Events, if any) as though a Prepayment Premium Event had occurred and such Prepayment Premium shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. Any Prepayment Call Premium payable above shall be presumed in connection with such prepayment and (y) amounts payable pursuant to be the liquidated damages sustained by each Lender as the result of the early termination Section 2.9 in connection with such prepayment and Borrower agrees that it is reasonable under the circumstances currently existing. The Prepayment Premium shall also be payable in the event the Obligations (and/or this AgreementC) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means. EACH LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) (ON BEHALF OF ITSELF AND THE OTHER LOAN PARTIES) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS, OR MAY PROHIBIT, THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. Each Loan Party expressly agrees (subject to the fullest extent that each may lawfully do so) that: foregoing clauses (A) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B), any prepayment of LC Loans shall be applied first to any LC Loans that are Base Rate LC Loans and then to any LC Loans that are LIBOR LC Loans.
iii. In the event of any Mandatory Prepayment made pursuant to Section 2.1.9(c)(i)(F) with the proceeds of any performance liquidated damages or with Loss Proceeds in accordance with Section 3.9 of the Depositary Agreement, each quarterly Target Debt Balance amount set forth on Exhibit I occurring on or after the date of such prepayment shall be reduced by the percentage that represents the ratio of (x) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Prepayment Premium; and (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.06(c)(iv). Each Loan Party expressly acknowledges that its agreement to pay the Prepayment Premium to Lenders as herein described is a material inducement to Lenders to provide the Commitments and make the Loans contemplated hereby. The Borrower acknowledges, and the parties hereto agree, that each Lender has the right to maintain its investment in the Loans free from repayment by the Borrower (except as herein specifically provided for) and that the provision for payment of a Prepayment Premium by the Borrower, in the event that the Loans are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances.
1.6.3.5. Each party hereto acknowledges and agrees that Loans of a particular Lender shall be amount prepaid pursuant to Section 2.06(a2.1.9(c)(i)(F) or Section 2.06(bpursuant to the Depositary Agreement, as applicable divided by (y) (the aggregate principal amount of the Construction Loans or Term Loans, as applicable) in , outstanding immediately prior to such prepayment. Within five Banking Days after any such prepayment, the order in Co-Borrowers shall deliver to Administrative Agent a proposed revised Exhibit I implementing the adjustment described by this Section, together with reasonably detailed supporting calculations therefor, which such Loans were made or acquired revised exhibit, once approved by such Lender pursuant the Required Lenders, shall be deemed to Section 2.01replace the existing Exhibit I for all purposes under this Agreement.
Appears in 1 contract
Samples: First Lien Credit Agreement (Fortress Transportation & Infrastructure Investors LLC)
Terms of All Prepayments. 1.6.3.1. Unless expressly set forth otherwise(a) Except as otherwise provided in this Agreement (including Section 2.8 and this Section 2.9), all partial amounts to be applied in connection with mandatory prepayments of the Loans made pursuant to Section 2.8 shall be applied (i) first, to the outstanding Loans ratably and as set forth in Section 7.02.
1.6.3.2. Each prepayment of Construction Loans shall be accompanied by payment of all accrued interest on the amount prepaidor Term Loans, the Prepayment Premium (other than in as the case of Sections 2.06(b)(imay be, in accordance with Section 2.9(b), 2.06(b)(ii(ii) and 2.06(b)(v) above) and any additional amounts required pursuant to Section 2.11.
0.0.0.0. Xx later than ten (10) Business Days after receiving a Material Project Documents Prepayment Offer, an Event of Loss Prepayment Offer, a Disposition Proceeds Prepayment Offer or a Debt Prepayment Offer (the expiration of such ten (10) Business Day-period, the “Prepayment Offer Deadline”), each Lender shall advise Borrower in writing whether it has elected to accept such prepayment offer, which it shall determine in its sole discretion; provided that any Lender which shall fail to so advise Borrower by the Prepayment Offer Deadline shall have been deemed to have accepted such prepayment offer. Each of the Lenders shall have the right, but not the obligationsecond, to accept or reject its the prepayment of LC Loans and (iii) third, to permanently reduce the then remaining LC Commitments on a pro rata portion basis and terminate or cash collateralize any issued Letters of the prepayment offer by Borrower. Borrower shall have no obligation to prepay any amounts in respect of any declining Xxxxxx’s Credit, if applicable, on a pro rata portion basis in accordance with Section 2.16(n). Amounts prepaid as mandatory prepayments of the prepayment offerLoans may not be re-borrowed. In connection with The application of any prepayment pursuant to Section 2.06(b)(i2.8 shall be made first to Base Rate Loans and second to LIBOR Loans, in each case pro rata among such Base Rate Loans or LIBOR Loans, as applicable.
(b) Term Loans prepaid in accordance with Section 2.8 shall, subject to the last sentence of Section 2.9(a), be applied pro rata to each Scheduled Repayment Amount then provided for in the Amortization Schedule, excluding the final Scheduled Repayment Amount unless all other Scheduled Repayment Amounts have been paid.
(ii), (iiic) and/or (iv), the amount of the Loan prepaid shall be calculated so that the total amount of Loans prepaid, the accrued but unpaid interest on such Loans and any Prepayment Premium applicable to such prepayment All prepayments of Loans shall be no more applied among the Lenders according to their respective Proportionate Shares of the Loans being repaid at the time of the applicable prepayment.
(d) Amounts to be applied in connection with voluntary prepayments made pursuant to Section 2.7 shall be applied, in the case of the Term Loans, in inverse order of maturity against the remaining Scheduled Repayment Amounts then provided for in the Amortization Schedule, including the final Scheduled Repayment Amount. The application of any prepayment pursuant to Section 2.7 shall be made, first, to Base Rate Loans and, second, to LIBOR Loans.
(e) Upon the prepayment of any Loan (whether such prepayment is an optional prepayment or a mandatory prepayment), the Borrower shall pay to the Administrative Agent for the account of each Lender which made such Loan (i) all accrued interest to the date of such prepayment owed pursuant to the terms of this Agreement on the amount prepaid; (ii) all accrued fees to the date of such prepayment owed pursuant to the terms of this Agreement corresponding to the amount being prepaid; and (iii) if such prepayment is the prepayment of a LIBOR Loan on a day other than the Net Available Amountlast day of an Interest Period for such LIBOR Loan, all Breakage Costs incurred by such Lender as a result of such prepayment. Subject to the making of new LC Loans pursuant to Sections 2.3(b) and 2.16(e), Loans prepaid or repaid may not be re-borrowed.
0.0.0.0. Xx is understood and agreed that if (f) In the Obligations are acceleratedevent of any prepayment of Term Loans under this Agreement, otherwise become due prior to such prepayment shall be accompanied by a concurrent reduction by the Maturity Date or are still outstanding as Borrower of the Maturity Date, in each case, in respect notional amount of any Event of Default (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event Interest Rate Agreements (including the acceleration payment of claims by operation of law)), the Prepayment Premium any Interest Fix Fees that would have applied if, at the -53- US-DOCS\150507763.9 Bakersfield Refinery – Senior Credit Agreement |US-DOCS\150507763.15|| time of such acceleration, Borrower had prepaid, refinanced, substituted or replaced any or all of the Loan as contemplated in Section 2.06(a) (any such event, a “Prepayment Premium Event”), will also be become due and payable without any further action (including any notice requirements otherwise applicable to Prepayment Premium Events, if any) as though a Prepayment Premium Event had occurred and such Prepayment Premium shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. Any Prepayment Premium payable above shall be presumed ) then in effect, pro rata, to be the liquidated damages sustained by each Lender as extent that such a reduction is necessary so that after such prepayment the result aggregate notional amounts under such Interest Rate Agreements would not exceed one hundred percent (100%) of all Term Loans outstanding.
(g) Except for Construction Loans that are Term Converted pursuant to the early termination and Borrower agrees that it is reasonable under the circumstances currently existing. The Prepayment Premium shall also be payable in the event the Obligations (and/or terms of this Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means. EACH LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) (ON BEHALF OF ITSELF AND THE OTHER LOAN PARTIES) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS, OR MAY PROHIBIT, THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. Each Loan Party expressly agrees (to the fullest extent that each may lawfully do so) that: (A) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Prepayment Premium; and (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.06(c)(iv). Each Loan Party expressly acknowledges that its agreement to pay the Prepayment Premium to Lenders as herein described is a material inducement to Lenders to provide the Commitments and make the Loans contemplated hereby. The Borrower acknowledges, and the parties hereto agree, that each Lender has the right to maintain its investment in the Loans free from repayment by the Borrower (except as herein specifically provided for) and that the provision for payment of a Prepayment Premium by the Borrower, in no event shall any mandatory or optional prepayments be funded from the event that the Loans are prepaid or are accelerated as a result proceeds of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstancesany Loan.
1.6.3.5. Each party hereto acknowledges and agrees that Loans of a particular Lender shall be prepaid pursuant to Section 2.06(a) or Section 2.06(b) (as applicable) in the order in which such Loans were made or acquired by such Lender pursuant to Section 2.01.
Appears in 1 contract
Samples: Credit Agreement (Sunpower Corp)
Terms of All Prepayments. 1.6.3.1. Unless expressly set forth otherwise(a) Except as otherwise provided in this Agreement including Section 2.8 and this Section 2.9, all partial amounts to be applied in connection with mandatory prepayments of the Loans made pursuant to Section 2.8 shall be applied (i) first, to the outstanding Loans ratably and as set forth in Section 7.02.
1.6.3.2. Each prepayment of Construction Loans shall be accompanied by payment of all accrued interest on the amount prepaidor Term Loans, the Prepayment Premium (other than in as the case of Sections 2.06(b)(imay be, in accordance with Section 2.9(b), 2.06(b)(iiand (ii) and 2.06(b)(v) above) and any additional amounts required pursuant to Section 2.11.
0.0.0.0. Xx later than ten (10) Business Days after receiving a Material Project Documents Prepayment Offer, an Event of Loss Prepayment Offer, a Disposition Proceeds Prepayment Offer or a Debt Prepayment Offer (the expiration of such ten (10) Business Day-period, the “Prepayment Offer Deadline”), each Lender shall advise Borrower in writing whether it has elected to accept such prepayment offer, which it shall determine in its sole discretion; provided that any Lender which shall fail to so advise Borrower by the Prepayment Offer Deadline shall have been deemed to have accepted such prepayment offer. Each of the Lenders shall have the right, but not the obligationsecond, to accept or reject its pro rata portion of the prepayment offer by Borrowerof DSR LC Loans. Borrower shall have no obligation to prepay any amounts in respect The application of any declining Xxxxxx’s pro rata portion of the prepayment offer. In connection with any prepayment pursuant to Section 2.06(b)(i2.8 shall be made first to Base Rate Loans and second to LIBOR Loans, in each case pro rata among such Base Rate Loans or LIBOR Loans, as applicable.
(b) Term Loans prepaid in accordance with Section 2.8 shall, subject to the last sentence of Section 2.9(a), be applied pro rata to each Scheduled Repayment Amount then provided for in the Amortization Schedule for the applicable Tranche, excluding the final Scheduled Repayment Amount unless all other Scheduled Repayment Amounts have been paid.
(ii), (iiic) and/or (iv), the amount of the Loan prepaid shall be calculated so that the total amount of Loans prepaid, the accrued but unpaid interest on such Loans and any Prepayment Premium applicable to such prepayment All prepayments of Loans shall be applied among the Lenders according to their respective Proportionate Shares of the Loans being repaid at the time of the applicable prepayment.
(d) Amounts to be applied in connection with voluntary prepayments made pursuant to Section 2.7 shall be applied, in the case of the Term Loans as directed by the Borrower, provided that such voluntary prepayment shall be made on a pro rata basis within the class, tranche or facility directed to be prepaid by the Borrower. If no more than such direction is provided, such voluntary prepayments shall be applied in direct order of maturity against the Net Available remaining Scheduled Repayment Amounts then provided for in the Amortization Schedule for the applicable Tranche, including the final Scheduled Repayment Amount.
0.0.0.0. Xx (e) Upon the prepayment of any Loan (whether such prepayment is understood and agreed that if an optional prepayment or a mandatory prepayment), the Obligations are accelerated, otherwise become due prior Borrower shall pay to the Maturity Date Administrative Agent (to the account identified in Annex 1) for the account of each Lender which made such Loan (i) all accrued interest to the date of such prepayment owed pursuant to the terms of this Agreement on the amount prepaid; and (ii) all accrued fees to the date of such prepayment owed pursuant to the terms of this Agreement corresponding to the amount being prepaid.
(f) In the event of any prepayment of Term Loans under this Agreement, such prepayment shall be accompanied by a concurrent reduction by the Borrower or are still outstanding as the Counterparty of the Maturity Date, in each case, in respect notional amount of any Event of Default (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event Interest Rate Agreements (including the acceleration payment of claims by operation of law)), the Prepayment Premium any Interest Fix Fees that would have applied if, at the -53- US-DOCS\150507763.9 Bakersfield Refinery – Senior Credit Agreement |US-DOCS\150507763.15|| time of such acceleration, Borrower had prepaid, refinanced, substituted or replaced any or all of the Loan as contemplated in Section 2.06(a) (any such event, a “Prepayment Premium Event”), will also be become due and payable without any further action (including any notice requirements otherwise applicable to Prepayment Premium Events, if any) as though a Prepayment Premium Event had occurred and such Prepayment Premium shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. Any Prepayment Premium payable above shall be presumed ) then in effect, on a pro rata basis across all Counterparties to be such Interest Rate Agreements, such that after such prepayment the liquidated damages sustained by each Lender as the result aggregate notional amounts under such Interest Rate Agreements would not exceed one hundred percent (100%) of the early termination and Borrower agrees that it is reasonable aggregate principal amount outstanding under the circumstances currently existing. The Prepayment Premium shall also be payable in Term Loans.
(g) Except for Construction Loans that are Term Converted pursuant to the event the Obligations (and/or terms of this Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means. EACH LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) (ON BEHALF OF ITSELF AND THE OTHER LOAN PARTIES) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS, OR MAY PROHIBIT, THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. Each Loan Party expressly agrees (to the fullest extent that each may lawfully do so) that: (A) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Prepayment Premium; and (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.06(c)(iv). Each Loan Party expressly acknowledges that its agreement to pay the Prepayment Premium to Lenders as herein described is a material inducement to Lenders to provide the Commitments and make the Loans contemplated hereby. The Borrower acknowledges, and the parties hereto agree, that each Lender has the right to maintain its investment in the Loans free from repayment by the Borrower (except as herein specifically provided for) and that the provision for payment of a Prepayment Premium by the Borrower, in no event shall any mandatory or optional prepayments be funded from the event that the Loans are prepaid or are accelerated as a result proceeds of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstancesany Loan.
1.6.3.5. Each party hereto acknowledges and agrees that Loans of a particular Lender shall be prepaid pursuant to Section 2.06(a) or Section 2.06(b) (as applicable) in the order in which such Loans were made or acquired by such Lender pursuant to Section 2.01.
Appears in 1 contract
Terms of All Prepayments. 1.6.3.1. Unless expressly set forth otherwise, all (i) All partial prepayments of the Loans shall be applied on a pro rata basis to the outstanding Loans ratably and as set forth Loan of all Lenders, provided that such pro rata allocation shall, in the case of Section 7.022.06(b)(v), only occur in respect of the Lenders who have accepted their respective applicable ECF Prepayment Offers.
1.6.3.2. (ii) Each prepayment of Loans shall be accompanied by payment of all accrued interest on the amount prepaid, the Prepayment Premium (other than in the case of Sections 2.06(b)(i), 2.06(b)(ii) and 2.06(b)(v) above) and any additional amounts required pursuant to Section 2.11.
0.0.0.0. Xx (iii) No later than ten (10) Business Days after receiving a Material Project Documents Prepayment Offer, an Event of Loss Prepayment Offer, a Disposition Proceeds Prepayment Offer Offer, or a Debt Prepayment Offer or an ECF Prepayment Offer (the expiration of such ten (10) Business Day-period, the “Prepayment Offer Deadline”), each Lender shall advise Borrower in writing whether it has elected to accept such prepayment offer, which it shall determine in its sole discretion; provided that any Lender which shall fail to so advise Borrower by the Prepayment Offer Deadline shall have been deemed to have accepted such prepayment offer. Each of the Lenders shall have the right, but not the obligation, to accept or reject its pro rata portion of the prepayment offer by Borrower. Borrower shall have no obligation to prepay any amounts in respect of any declining XxxxxxLender’s pro rata portion of the prepayment offer. In connection with any prepayment pursuant to Section 2.06(b)(i), (ii), (iii) and/or (iv), the amount of the Loan prepaid shall be calculated so that the total amount of Loans prepaid, the accrued but unpaid interest on such Loans and any Prepayment Premium applicable to such prepayment of Loans shall be no more than the Net Available Amount.
0.0.0.0. Xx (iv) It is understood and agreed that if the Obligations are accelerated, accelerated or otherwise become due prior to the Maturity Date or are still outstanding as of the Maturity Datetheir maturity date, in each case, in respect of any Event of Default (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event (including the acceleration of claims by operation of law)), the Prepayment Premium that would have applied if, at the -53- US-DOCS\150507763.9 Bakersfield Refinery – Senior Credit Agreement |US-DOCS\150507763.15|| time of such acceleration, Borrower had prepaid, refinanced, substituted or replaced any or all of the Loan as contemplated in Section 2.06(a) (any such event, a “Prepayment Premium Event”), will also be due and payable without any further action (including any notice requirements otherwise applicable to Prepayment Premium Events, if any) as though a Prepayment Premium Event had occurred and such Prepayment Premium shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. Any Prepayment Premium payable above shall be presumed to be the liquidated damages sustained by each Lender as the result of the early termination and Borrower agrees that it is reasonable under the circumstances currently existing. The Prepayment Premium 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. EACH LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) (ON BEHALF OF ITSELF AND THE OTHER LOAN PARTIES) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS, OR MAY PROHIBIT, THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. Each Loan Party expressly agrees (to the fullest extent that each may lawfully do so) that: (A) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Prepayment Premium; and (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.06(c)(iv). Each Loan Party expressly acknowledges that its agreement to pay the Prepayment Premium to Lenders as herein described is a material inducement to Lenders to provide the Commitments and make the Loans contemplated hereby. The Borrower acknowledges, and the parties hereto agree, that each Lender has the right to maintain its investment in the Loans free from repayment by the Borrower (except as herein specifically provided for) and that the provision for payment of a Prepayment Premium by the Borrower, in the event that the Loans are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances. Notwithstanding anything herein to the contrary, no Prepayment Premium shall be payable hereunder or under the Loan Documents using the proceeds of any loans under the HoldCo Credit Agreement which are funded in accordance with the Holdco Lender Backstop Agreement.
1.6.3.5. (v) Each party hereto acknowledges and agrees that Loans of a particular Lender shall be prepaid pursuant to Section 2.06(a) or Section 2.06(b) (as applicable) in the order in which such Loans were made or acquired by such Lender pursuant to Section 2.01.
Appears in 1 contract
Samples: Credit Agreement (Global Clean Energy Holdings, Inc.)
Terms of All Prepayments. 1.6.3.1. Unless expressly set forth otherwise(i) With respect to any prepayment of any Advance, whether such prepayment is voluntary or mandatory, including a prepayment upon acceleration, the Borrower shall comply with all partial applicable terms and provisions of this Agreement and the Funding Agreements.
(ii) All prepayments of the Loans any Note shall be applied to Advances as specified in the outstanding Loans ratably relevant Prepayment Election Notice, and as set forth due in Section 7.02an amount equal to the Prepayment Price calculated by FFB in accordance with the terms of the Note.
1.6.3.2. Each (iii) The Borrower may not re-borrow the principal amount of any Advance that is prepaid, nor shall any such prepayment create availability for further borrowings during the Availability Period.
(iv) Simultaneously with all prepayments of Loans the Advances under the Guaranteed Loan, whether voluntary or mandatory, the Borrower shall be accompanied by payment of pay all accrued interest on and other fees, costs, expenses and other Note Obligations then outstanding under the amount prepaid, Financing Documents. Any prepayments of the Prepayment Premium (Advances under the Guaranteed Loan in full shall require payment in full of all other than in the case of Sections 2.06(b)(i), 2.06(b)(ii) and 2.06(b)(v) above) and any additional amounts required pursuant to Section 2.11Note Obligations.
0.0.0.0. Xx later than ten (10v) Business Days after receiving a Material Project Documents Prepayment Offer, an Event of Loss Prepayment Offer, a Disposition Proceeds Prepayment Offer or a Debt Prepayment Offer (If the expiration of such ten (10) Business Day-period, the “Prepayment Offer Deadline”), each Lender shall advise Borrower in writing whether it has elected to accept such prepayment offer, which it shall determine in its sole discretion; provided that any Lender which shall fail to so advise make a prepayment to FFB on any Intended Prepayment Date in accordance with this Agreement and the Note, the Borrower by shall pay FFB a Late Charge on any Overdue Amount from such Intended Prepayment Date to the Prepayment Offer Deadline shall have been deemed to have accepted such prepayment offer. Each date on which payment is made, computed in accordance with the provisions of the Lenders shall have the right, but not the obligation, to accept or reject its pro rata portion of the Note.
(vi) Any prepayment offer by Borrower. Borrower shall have no obligation to prepay any amounts in respect of any declining Xxxxxx’s pro rata portion of the prepayment offer. In connection with any prepayment made pursuant to this Section 2.06(b)(i), 3.05 (ii), (iiiPrepayments) and/or (iv), the amount of the Loan prepaid shall be calculated so that the total amount of Loans prepaid, the accrued but unpaid interest on such Loans and any Prepayment Premium applicable to such prepayment of Loans shall be no more than the Net Available Amount.
0.0.0.0. Xx is understood and agreed that if the Obligations are accelerated, otherwise become due prior to the Maturity Date or are still outstanding as of the Maturity Date, in each case, in respect of any Event of Default (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event (including the acceleration of claims by operation of law)), the Prepayment Premium that would have applied if, at the -53- US-DOCS\150507763.9 Bakersfield Refinery – Senior Credit Agreement |US-DOCS\150507763.15|| time of such acceleration, Borrower had prepaid, refinanced, substituted or replaced any or all of the Loan as contemplated in Section 2.06(a) (any such event, a “Prepayment Premium Event”), will also be due and payable without any further action (including any notice requirements otherwise applicable to Prepayment Premium Events, if any) as though a Prepayment Premium Event had occurred and such Prepayment Premium shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. Any Prepayment Premium payable above shall be presumed to be the liquidated damages sustained by each Lender as the result of the early termination and Borrower agrees that it is reasonable under the circumstances currently existing. The Prepayment Premium 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. EACH LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) (ON BEHALF OF ITSELF AND THE OTHER LOAN PARTIES) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS, OR MAY PROHIBIT, THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. Each Loan Party expressly agrees (to the fullest extent that each may lawfully do so) thatapplied: (A) to the Prepayment Premium is reasonable specific Advances identified by the Borrower in accordance with the Funding Agreements; and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) in the Prepayment Premium inverse order of maturity among the outstanding principal amounts of such Advances; provided that the Borrower may elect to which Advances (either in part or in full) any prepayment shall be payable notwithstanding applied.
(vii) In the then prevailing market rates at event of any voluntary prepayment of the time payment is made; Guaranteed Loan pursuant to this Section 3.05(b) (CVoluntary Prepayments) there has been a course on or prior to the last day of conduct between Lenders and the Availability Period, the remaining Loan Parties giving specific consideration in this transaction for such agreement to pay the Prepayment Premium; and (D) the Loan Parties Commitment Amount shall be estopped hereafter from claiming differently than as deemed to be reduced to zero Dollars, unless otherwise agreed to in this Section 2.06(c)(iv). Each Loan Party expressly acknowledges that its agreement to pay the Prepayment Premium to Lenders as herein described is a material inducement to Lenders to provide the Commitments and make the Loans contemplated hereby. The Borrower acknowledges, and the parties hereto agree, that each Lender has the right to maintain its investment in the Loans free from repayment by the Borrower (except as herein specifically provided for) and that the provision for payment of a Prepayment Premium by the Borrower, in the event that the Loans are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstancesGuarantor.
1.6.3.5. Each party hereto acknowledges and agrees that Loans of a particular Lender shall be prepaid pursuant to Section 2.06(a) or Section 2.06(b) (as applicable) in the order in which such Loans were made or acquired by such Lender pursuant to Section 2.01.
Appears in 1 contract
Samples: Loan Guarantee Agreement (EVgo Inc.)
Terms of All Prepayments. 1.6.3.1. Unless expressly set forth otherwise, all (i) All partial prepayments of the Loans Loan shall be applied applied, on a pro rata basis to the outstanding Loans ratably and as set forth in Section 7.02Loan of all Lenders.
1.6.3.2. (ii) Each prepayment of Loans Loan shall be accompanied by payment of all accrued interest on the amount prepaid, the Prepayment Premium (other than in the case of Sections 2.06(b)(i), 2.06(b)(ii) and 2.06(b)(v) above) prepaid and any additional amounts required pursuant to Section 2.112.09.
0.0.0.0. Xx (iii) No later than ten (10) Business Days after receiving a Material Project Documents Prepayment Offer, an Event of Loss Prepayment Offer, a Disposition Proceeds Prepayment Offer or a Debt Prepayment Offer (the expiration of such ten (10) Business Day-period, the “Prepayment Offer Deadline”)Offer, each Lender shall advise the Borrower in writing whether it has elected to accept such prepayment offer, which it shall determine in its sole discretion; provided that any Lender which shall fail to so advise Borrower by the Prepayment Offer Deadline shall have been deemed to have accepted such prepayment offer. Each of the Lenders shall have the right, but not the obligation, to accept or reject its pro rata portion of the such prepayment offer by the Borrower. Borrower shall have no obligation to prepay any amounts in respect of any declining Xxxxxx’s pro rata portion of the prepayment offer. In connection with any prepayment pursuant to Section 2.06(b)(i2.05(b)(i), (ii), (iii) and/or (iviii), the amount of the Loan prepaid shall be calculated so that the total amount of Loans prepaid, the Loan prepaid and the accrued but unpaid interest on such Loans and any Prepayment Premium applicable to such prepayment of Loans Loan shall be no more than the Net Available Amount.
0.0.0.0. Xx (iv) It is understood and agreed that if the Obligations are accelerated, accelerated or otherwise become due prior to the Maturity Date or are still outstanding as of the Maturity Date, in each case, in respect of any Event of Default (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event (including the acceleration of claims by operation of law)), the Prepayment Premium Final Payment Fee that would have applied if, at the -53- US-DOCS\150507763.9 Bakersfield Refinery – Senior Credit Agreement |US-DOCS\150507763.15|| time of such acceleration, the Borrower had prepaid, refinanced, substituted substituted, or replaced any or all of the Loan as contemplated in Section 2.06(a2.05(a) (any such event, a “Prepayment Premium Final Payment Fee Event”), will shall also be due and payable without any further action (including including, without limitation, any notice requirements otherwise applicable to Prepayment Premium Eventsa Final Payment Fee Event, if any) as though a Prepayment Premium Final Payment Fee Event had occurred occurred, and such Prepayment Premium Final Payment Fee shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. Any Prepayment Premium Final Payment Fee payable above shall be presumed to be the liquidated damages sustained by each Lender as the result of the early termination and the Borrower agrees that it is reasonable under the circumstances currently existing. The Prepayment Premium Final Payment Fee 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 foreclosure, or by any other means. EACH LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) (ON BEHALF OF ITSELF AND THE OTHER LOAN PARTIES) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS, PROHIBITS OR MAY PROHIBIT, PROHIBIT THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM FINAL PAYMENT FEE IN CONNECTION WITH ANY SUCH ACCELERATION. Each Loan Party expressly agrees (to the fullest extent that each may lawfully do so) that: (A) the Prepayment Premium Final Payment Fee is reasonable and is the product of an arm’s arm’s-length transaction between sophisticated business people, ably represented by counsel; (B) the Prepayment Premium Final Payment Fee shall be payable notwithstanding the then 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 Prepayment PremiumFinal Payment Fee; and (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.06(c)(iv)paragraph. Each Loan Party expressly acknowledges that its agreement to pay the Prepayment Premium Final Payment Fee to Lenders as herein described is a material inducement to Lenders to provide the Closing Date Commitments and Delayed Draw Commitments and make the Loans contemplated hereby. The Borrower acknowledges, Closing Date Loan and the parties hereto agree, that each Lender has the right to maintain its investment in the Loans free from repayment by the Borrower (except as herein specifically provided for) and that the provision for payment of a Prepayment Premium by the Borrower, in the event that the Loans are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstancesDelayed Draw Loan.
1.6.3.5. Each party hereto acknowledges and agrees that Loans of a particular Lender shall be prepaid pursuant to Section 2.06(a) or Section 2.06(b) (as applicable) in the order in which such Loans were made or acquired by such Lender pursuant to Section 2.01.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Tellurian Inc. /De/)
Terms of All Prepayments. 1.6.3.1. Unless expressly set forth otherwise, all partial prepayments of i. Upon the Loans shall be applied to the outstanding Loans ratably and as set forth in Section 7.02.
1.6.3.2. Each prepayment of Loans any Loan (whether such prepayment is an Optional Prepayment or a Mandatory Prepayment), Co-Borrowers shall be accompanied by payment pay to Administrative Agent for the account of each Lender which made such Loan (A) all accrued interest to the date of such prepayment on the principal amount of such Loan prepaid, (B) all accrued fees to the Prepayment date of such prepayment relating to the principal amount of such Loan being prepaid and (C) the applicable Call Premium determined for the prepayment date with respect to such Loan prepaid, if any.
(other than A) All Optional Prepayments shall be applied, on a pro rata basis, to prepay outstanding Initial Construction Loans, Additional Construction Loans, Initial Term Loans, Additional Term Loans, Initial Term PIK Loans or Additional Term PIK Loans, as applicable, (B) except as otherwise specifically set forth herein (including in the case of Sections 2.06(b)(iclause (c)(i) below), 2.06(b)(ii) and 2.06(b)(v) above) and any additional amounts required pursuant to Section 2.11.
0.0.0.0. Xx later than ten (10) Business Days after receiving Mandatory Prepayment shall be applied, on a Material Project Documents Prepayment Offer, an Event of Loss Prepayment Offer, a Disposition Proceeds Prepayment Offer or a Debt Prepayment Offer (the expiration of such ten (10) Business Day-period, the “Prepayment Offer Deadline”), each Lender shall advise Borrower in writing whether it has elected to accept such prepayment offer, which it shall determine in its sole discretion; provided that any Lender which shall fail to so advise Borrower by the Prepayment Offer Deadline shall have been deemed to have accepted such prepayment offer. Each of the Lenders shall have the right, but not the obligationpro rata basis, to accept prepay outstanding Initial Construction Loans, Additional Construction Loans, Initial Term Loans, Additional Term Loans, Initial Term PIK Loans or reject its pro rata portion of the prepayment offer by Borrower. Borrower shall have no obligation to prepay any amounts in respect of any declining Xxxxxx’s pro rata portion of the prepayment offer. In connection Additional Term PIK Loans, as applicable, together with any prepayment pursuant to Section 2.06(b)(i), (ii), (iii) and/or (iv), the amount of the Loan prepaid shall be calculated so that the total amount of Loans prepaid, the accrued but unpaid interest and applicable Call Premium payable in connection with such prepayment; provided that, notwithstanding anything to the contrary herein, the Co-Borrowers may direct, by the inclusion of such direction in the written notice pursuant to Section 2.1.9(b), that prepayments of principal hereunder be applied (x) first, to prepay, on a pro rata basis, all outstanding Initial Term PIK Loans and Additional Term PIK Loans outstanding on such date and (y) second, to prepay, on a pro rata basis, other outstanding Initial Term Loans and Additional Term Loans.
iii. In the event of any Mandatory Prepayment Premium applicable made pursuant to Section 2.1.9(c)(i)(F) with the proceeds of any performance liquidated damages or with Loss Proceeds in accordance with Section 3.9 of the Depositary Agreement, each quarterly Target Debt Balance amount set forth on Exhibit I occurring on or after the date of such prepayment of Loans shall be no more than reduced by the Net Available Amount.
0.0.0.0. Xx is understood and agreed percentage that if represents the Obligations are accelerated, otherwise become due prior to the Maturity Date or are still outstanding as ratio of the Maturity Date, in each case, in respect of any Event of Default (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event (including the acceleration of claims by operation of law)), the Prepayment Premium that would have applied if, at the -53- US-DOCS\150507763.9 Bakersfield Refinery – Senior Credit Agreement |US-DOCS\150507763.15|| time of such acceleration, Borrower had prepaid, refinanced, substituted or replaced any or all of the Loan as contemplated in Section 2.06(a) (any such event, a “Prepayment Premium Event”), will also be due and payable without any further action (including any notice requirements otherwise applicable to Prepayment Premium Events, if any) as though a Prepayment Premium Event had occurred and such Prepayment Premium shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. Any Prepayment Premium payable above shall be presumed to be the liquidated damages sustained by each Lender as the result of the early termination and Borrower agrees that it is reasonable under the circumstances currently existing. The Prepayment Premium 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. EACH LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) (ON BEHALF OF ITSELF AND THE OTHER LOAN PARTIES) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS, OR MAY PROHIBIT, THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. Each Loan Party expressly agrees (to the fullest extent that each may lawfully do so) that: (Ax) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Prepayment Premium; and (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.06(c)(iv). Each Loan Party expressly acknowledges that its agreement to pay the Prepayment Premium to Lenders as herein described is a material inducement to Lenders to provide the Commitments and make the Loans contemplated hereby. The Borrower acknowledges, and the parties hereto agree, that each Lender has the right to maintain its investment in the Loans free from repayment by the Borrower (except as herein specifically provided for) and that the provision for payment of a Prepayment Premium by the Borrower, in the event that the Loans are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances.
1.6.3.5. Each party hereto acknowledges and agrees that Loans of a particular Lender shall be amount prepaid pursuant to Section 2.06(a2.1.9(c)(i)(F) or Section 2.06(bpursuant to the Depositary Agreement, as applicable divided by (y) (the aggregate principal amount of the Construction Loans or Term Loans, as applicable) in , outstanding immediately prior to such prepayment. Within five Banking Days after any such prepayment, the order in Co-Borrowers shall deliver to Administrative Agent a proposed revised Exhibit I implementing the adjustment described by this Section, together with reasonably detailed supporting calculations therefor, which such Loans were made or acquired revised exhibit, once approved by such Lender pursuant the Required Lenders, shall be deemed to Section 2.01replace the existing Exhibit I for all purposes under this Agreement.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Fortress Transportation & Infrastructure Investors LLC)
Terms of All Prepayments. 1.6.3.1. Unless expressly set forth otherwise, all (i) All partial prepayments of the Loans shall be applied on a pro rata basis to the outstanding Loans ratably and as set forth Loan of all Lenders, provided that such pro rata allocation shall, in Section 7.02the case ofSection 2.06(b)(i)only occur in respect of the Lenders who have accepted their respective applicable ECF Prepayment Offers.
1.6.3.2. (ii) Each prepayment of Loans shall be accompanied by payment of all accrued interest on the amount prepaid, the Prepayment Premium (other than in the case of Sections Section 2.06(b)(i), 2.06(b)(ii) and 2.06(b)(v) above) and any additional amounts required pursuant to Section 2.11.
0.0.0.0. Xx (iii) No later than ten (10) Business Days after receiving a Material Project Documents Prepayment Offer, an Event of Loss Prepayment Offer, a Disposition Proceeds Prepayment Offer or a Debt ECF Prepayment Offer (the expiration of such ten (10) Business 10)Business Day-period, the “Prepayment Offer Deadline”), each Lender shall advise Borrower in writing whether it has elected to accept such prepayment offer, which it shall determine in its sole discretion; provided that discretion;providedthat any Lender which shall fail to so advise Borrower by the Prepayment Offer Deadline shall have been deemed to have accepted such prepayment offer. Each of the Lenders shall have the right, but not the obligation, to accept or reject its pro rata portion itspro rataportion of the prepayment offer by Borrower. Borrower shall have no obligation to prepay any amounts in respect of any declining Xxxxxx’s pro rata portion Lender’spro rataportion of the prepayment offer. In connection with any prepayment pursuant to Section 2.06(b)(i), (ii), (iii) and/or offer.[Reserved].
(iv), the amount of the Loan prepaid shall be calculated so that the total amount of Loans prepaid, the accrued but unpaid interest on such Loans and any Prepayment Premium applicable to such prepayment of Loans shall be no more than the Net Available Amount.
0.0.0.0. Xx ) It is understood and agreed that if the Obligations are accelerated, accelerated or otherwise become due prior to the Maturity Date or are still outstanding as of the Maturity Datetheir maturity date, in each case, in respect of any Event of Default (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event (including the acceleration of claims by operation of law)), the Prepayment Premium that would have applied if, at the -53- US-DOCS\150507763.9 Bakersfield Refinery – Senior Credit Agreement |US-DOCS\150507763.15|| time of such acceleration, Borrower had prepaid, refinanced, substituted or replaced any or all of the Loan as contemplated in Section 2.06(a) (any such event, a “Prepayment Premium Event”), will also be due and payable without any further action (including any notice requirements otherwise applicable to Prepayment Premium Events, if any) as though a Prepayment Premium Event had occurred and such Prepayment Premium shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each LenderXxxxxx’s lost profits as a result thereof. Any Prepayment Premium payable above shall be presumed to be the liquidated damages sustained by each Lender as the result of the early termination and Borrower agrees that it is reasonable under the circumstances currently existing. The Prepayment Premium 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. EACH LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) (ON BEHALF OF ITSELF AND THE OTHER LOAN PARTIES) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS, OR MAY PROHIBIT, THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. Each Loan Party expressly agrees (to the fullest extent that each may lawfully do so) that: (A) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Prepayment Premium; and (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.06(c)(iv). Each Loan Party expressly acknowledges that its agreement to pay the Prepayment Premium to Lenders as herein described is a material inducement to Lenders to provide the Commitments and make the Loans contemplated hereby. The Borrower acknowledges, and the parties hereto agree, that each Lender has the right to maintain its investment in the Loans free from repayment by the Borrower (except as herein specifically provided for) and that the provision for payment of a Prepayment Premium by the Borrower, in the event that the Loans are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances.. 37 Bakersfield Refinery - HoldCo Credit Agreement
1.6.3.5. (v) Each party hereto acknowledges and agrees that Loans of a particular Lender shall be prepaid pursuant to Section 2.06(a) or Section 2.06(b) (as applicable) in the order in which such Loans were made or acquired by such Lender pursuant to Section 2.01.
Appears in 1 contract
Samples: Credit Agreement (Global Clean Energy Holdings, Inc.)
Terms of All Prepayments. 1.6.3.1. Unless expressly set forth otherwise, all (i) All partial prepayments of the Loans shall be applied on a pro rata basis to the outstanding Loans ratably and as set forth Loan of all Lenders, provided that such pro rata allocation shall, in the case of Section 7.022.06(b)(v), only occur in respect of the Lenders who have accepted their respective applicable ECF Prepayment Offers.
1.6.3.2. (ii) Each prepayment of Loans shall be accompanied by payment of all accrued interest on the amount prepaid, the Prepayment Premium (other than in the case of Sections 2.06(b)(i), 2.06(b)(ii) and 2.06(b)(v) above) and any additional amounts required pursuant to Section 2.11.
0.0.0.0. Xx (iii) No later than ten (10) Business Days after receiving a Material Project Documents Prepayment Offer, an Event of Loss Prepayment Offer, a Disposition Proceeds Prepayment Offer, a Debt Prepayment Offer or a Debt an ECF Prepayment Offer (the expiration of such ten (10) Business Day-period, the “Prepayment Offer Deadline”), each Lender shall 44 Bakersfield Refinery – Senior Credit Agreement advise Borrower in writing whether it has elected to accept such prepayment offer, which it shall determine in its sole discretion; provided that any Lender which shall fail to so advise Borrower by the Prepayment Offer Deadline shall have been deemed to have accepted such prepayment offer. Each of the Lenders shall have the right, but not the obligation, to accept or reject its pro rata portion of the prepayment offer by Borrower. Borrower shall have no obligation to prepay any amounts in respect of any declining XxxxxxLender’s pro rata portion of the prepayment offer. In connection with any prepayment pursuant to Section 2.06(b)(i), (ii), (iii) and/or (iv), the amount of the Loan prepaid shall be calculated so that the total amount of Loans prepaid, the accrued but unpaid interest on such Loans and any Prepayment Premium applicable to such prepayment of Loans shall be no more than the Net Available Amount.
0.0.0.0. Xx (iv) It is understood and agreed that if the Obligations are accelerated, accelerated or otherwise become due prior to the Maturity Date or are still outstanding as of the Maturity Datetheir maturity date, in each case, in respect of any Event of Default (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event (including the acceleration of claims by operation of law)), the Prepayment Premium that would have applied if, at the -53- US-DOCS\150507763.9 Bakersfield Refinery – Senior Credit Agreement |US-DOCS\150507763.15|| time of such acceleration, Borrower had prepaid, refinanced, substituted or replaced any or all of the Loan as contemplated in Section 2.06(a) (any such event, a “Prepayment Premium Event”), will also be due and payable without any further action (including any notice requirements otherwise applicable to Prepayment Premium Events, if any) as though a Prepayment Premium Event had occurred and such Prepayment Premium shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. Any Prepayment Premium payable above shall be presumed to be the liquidated damages sustained by each Lender as the result of the early termination and Borrower agrees that it is reasonable under the circumstances currently existing. The Prepayment Premium 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. EACH LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) (ON BEHALF OF ITSELF AND THE OTHER LOAN PARTIES) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS, OR MAY PROHIBIT, THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. Each Loan Party expressly agrees (to the fullest extent that each may lawfully do so) that: (A) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Prepayment Premium; and (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.06(c)(iv). Each Loan Party expressly acknowledges that its agreement to pay the Prepayment Premium to Lenders as herein described is a material inducement to Lenders to provide the Commitments and make the Loans contemplated hereby. The Borrower acknowledges, and the parties hereto agree, that each Lender has the right to maintain its investment in the Loans free from repayment by the Borrower (except 45 Bakersfield Refinery – Senior Credit Agreement as herein specifically provided for) and that the provision for payment of a Prepayment Premium by the Borrower, in the event that the Loans are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances. Notwithstanding anything herein to the contrary, no Prepayment Premium shall be payable hereunder or under the Loan Documents using the proceeds of any loans under the HoldCo Credit Agreement which are funded in accordance with the Holdco Lender Backstop Agreement.
1.6.3.5. (v) Each party hereto acknowledges and agrees that Loans of a particular Lender shall be prepaid pursuant to Section 2.06(a) or Section 2.06(b) (as applicable) in the order in which such Loans were made or acquired by such Lender pursuant to Section 2.01.
Appears in 1 contract
Samples: Credit Agreement (Global Clean Energy Holdings, Inc.)
Terms of All Prepayments. 1.6.3.1. Unless expressly set forth otherwise, all (i) All partial prepayments of the Loans shall be applied applied, on a pro rata basis to the outstanding Loans ratably and as set forth in Section 7.02of each Lender.
1.6.3.2. (ii) Each prepayment of Loans shall be accompanied by payment of all accrued interest on the amount prepaid, the Prepayment Premium (other than in the case of Sections 2.06(b)(i)Premium, 2.06(b)(ii) and 2.06(b)(v) above) if any, and any additional amounts required pursuant to Section 2.112.09; provided that no Prepayment Premium shall be due in respect of any prepayment under Section 2.05(b)(iv).
0.0.0.0. Xx (iii) No later than ten (10) Business Days after receiving a Material Project Documents Prepayment Offer, an Event of Loss Prepayment Offer, a Disposition Proceeds Prepayment Offer or Offer, a Debt Prepayment Offer (the expiration of such ten (10) Business Day-period, the “or an ECF Prepayment Offer Deadline”)Offer, each Lender shall advise the Borrower in writing whether it has elected to accept such prepayment offer, which it shall determine in its sole and absolute discretion; provided that any Lender which shall fail to so advise Borrower by the Prepayment Offer Deadline shall have been deemed to have accepted such prepayment offer. Each of the Lenders shall have the right, but not the obligation, to accept or reject its pro rata portion of the such prepayment offer by the Borrower. Borrower shall have no obligation to prepay any amounts in respect of any declining Xxxxxx’s pro rata portion of the prepayment offer. In connection with any prepayment pursuant to Section 2.06(b)(i), (ii), (iii2.05(b)(i) and/or (iv2.05(b)(ii), the amount of the Loan Loans prepaid shall be calculated so that the total amount of Loans prepaid, the accrued but unpaid interest on such Loans and any Prepayment Premium applicable to such prepayment of Loans shall be no more than the Net Available Amount.
0.0.0.0. Xx (iv) It is understood and agreed that if the Obligations are accelerated, accelerated or otherwise become due prior to the Maturity Date or are still outstanding as of the Maturity Datetheir maturity date, in each case, in respect of any Event of Default (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event (including the acceleration of claims by operation of law)), the Prepayment Premium that would have applied if, at the -53- US-DOCS\150507763.9 Bakersfield Refinery – Senior Credit Agreement |US-DOCS\150507763.15|| time of such acceleration, Borrower had prepaid, refinanced, substituted or replaced any or all of the Loan Loans as contemplated in Section 2.06(a2.05(a) (any such event, a “Prepayment Premium Event”), will also be due and payable without any further action (including including, without limitation, any notice requirements otherwise applicable to Prepayment Premium Events, if any) as though a Prepayment Premium Event had occurred and such Prepayment Premium shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. Any Prepayment Premium payable above shall be presumed to be the liquidated damages sustained by each Lender as the result of the early termination and Borrower agrees that it is reasonable under the circumstances currently existing. The Prepayment Premium 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. EACH LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) (ON BEHALF OF ITSELF AND THE OTHER LOAN PARTIES) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS, PROHIBITS OR MAY PROHIBIT, PROHIBIT THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. Each Loan Party expressly agrees (to the fullest extent that each may lawfully do so) that: (A) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Prepayment Premium; and (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.06(c)(iv)paragraph. Each Loan Party expressly acknowledges that its agreement to pay the Prepayment Premium to Lenders as herein described is a material inducement to Lenders to provide the Commitments and make the Loans contemplated hereby. The Borrower acknowledges, and the parties hereto agree, that each Lender has the right to maintain its investment in the Loans free from repayment by the Borrower (except as herein specifically provided for) and that the provision for payment of a Prepayment Premium by the Borrower, in the event that the Loans are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstancesLoan.
1.6.3.5. Each party hereto acknowledges and agrees that Loans of a particular Lender shall be prepaid pursuant to Section 2.06(a) or Section 2.06(b) (as applicable) in the order in which such Loans were made or acquired by such Lender pursuant to Section 2.01.
Appears in 1 contract
Terms of All Prepayments. 1.6.3.1(a) Amounts to be applied in connection with prepayments made pursuant to Section 2.11 shall be applied as the Borrower shall direct. Unless expressly set forth otherwiseExcept as otherwise provided in this Agreement, amounts to be applied in connection with prepayments made pursuant to Section 2.12 shall be applied in accordance with Section 2.13(b) and to cash collateralize Letters of Credit, if applicable, in accordance with Section 3.9.
(b) All prepayments of Loans and Fixed Rate Notes shall be applied among the Financing Parties according to their pro rata portion of the aggregate principal amount of Loans and Fixed Rate Notes outstanding at the time of the applicable prepayment. All prepayments of Loans shall be applied among the Lenders according to their respective Proportionate Shares of the Loans being repaid at the time of the applicable prepayment and all partial prepayments of the Fixed Rate Notes shall be applied among the Fixed Rate Note Holders according to the pro rata portion of the Fixed Rate Notes held by each Fixed Rate Note Holder at the time of the applicable prepayment. All prepayments of Loans shall be applied to the outstanding Loans ratably and as set forth installments thereof in Section 7.02inverse order of maturity.
1.6.3.2. Each (c) Upon the prepayment of Loans any Loan (whether such prepayment is an optional prepayment or a mandatory prepayment), the Borrower shall be accompanied by payment pay to the Administrative Agent for the account of each Lender which made such Loan (i) all accrued interest to the date of such prepayment owed pursuant to the terms of this Agreement on the amount prepaid, (ii) all accrued fees to the Prepayment Premium date of such prepayment owed pursuant to the terms of this Agreement corresponding to the amount being prepaid, and (iii) if such prepayment is the prepayment of a LIBOR Loan on a day other than in the last day of an Interest Period for such LIBOR Loan, all Breakage Costs incurred by such Lender as a result of such prepayment. With the exception of Letters of Credit, Loans prepaid or repaid may not be re-borrowed.
(d) In the case of Sections 2.06(b)(i), 2.06(b)(ii) and 2.06(b)(v) above) and any additional amounts required each prepayment of Fixed Rate Notes pursuant to Section 2.11.
0.0.0.0. Xx later than ten (10) Business Days after receiving a Material Project Documents Prepayment Offer, an Event of Loss Prepayment Offer, a Disposition Proceeds Prepayment Offer or a Debt Prepayment Offer (the expiration of such ten (10) Business Day-periodthis Agreement, the “Prepayment Offer Deadline”)principal amount of each Fixed Rate Note to be prepaid shall mature and become due and payable on the date fixed for such prepayment, each Lender shall advise Borrower in writing whether it has elected together with interest on such principal amount accrued to accept such prepayment offerdate and the applicable Make-Whole Amount, if any, which it shall determine in its sole discretion; provided that any Lender which be paid to the Administrative Agent for the account of each Fixed Rate Note Holder. From and after such date, unless the Borrower shall fail to pay such principal amount when so advise due and payable, together with the interest and Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall cease to accrue. Any Fixed Rate Note paid or prepaid in full shall be surrendered to the Borrower and cancelled and shall not be reissued, and no Fixed Rate Note shall be issued in lieu of any prepaid principal amount of any Fixed Rate Note.
(e) In the event of any prepayment of Loans under this Agreement, such prepayment shall be accompanied by a concurrent reduction by the Prepayment Offer Deadline shall have been deemed to have accepted such prepayment offer. Each Borrower of the Lenders shall have the right, but not the obligation, to accept or reject its pro rata portion of the prepayment offer by Borrower. Borrower shall have no obligation to prepay any amounts in respect of any declining Xxxxxx’s pro rata portion of the prepayment offer. In connection with any prepayment pursuant to Section 2.06(b)(i), (ii), (iii) and/or (iv), the notional amount of the Loan prepaid shall be calculated so that the total amount of Loans prepaid, the accrued but unpaid interest on such Loans and any Prepayment Premium applicable to such prepayment of Loans shall be no more than the Net Available Amount.
0.0.0.0. Xx is understood and agreed that if the Obligations are accelerated, otherwise become due prior to the Maturity Date or are still outstanding as of the Maturity Date, in each case, in respect of any Event of Default (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event Swap Agreements (including the acceleration payment of claims by operation of law)), the Prepayment Premium any Swap Obligations that would have applied if, at the -53- US-DOCS\150507763.9 Bakersfield Refinery – Senior Credit Agreement |US-DOCS\150507763.15|| time of such acceleration, Borrower had prepaid, refinanced, substituted or replaced any or all of the Loan as contemplated in Section 2.06(a) (any such event, a “Prepayment Premium Event”), will also be become due and payable without any further action (including any notice requirements otherwise applicable to Prepayment Premium Events, if any) as though a Prepayment Premium Event had occurred and such Prepayment Premium shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. Any Prepayment Premium payable above shall be presumed ) then in effect, pro rata, to be the liquidated damages sustained by each Lender as extent that such a reduction is necessary so that after such prepayment the result aggregate notional amounts under such Swap Agreements would not exceed one hundred percent (100%) of all Term Loans outstanding.
(f) Except for Construction Loans that are Term Converted pursuant to the early termination and Borrower agrees that it is reasonable under the circumstances currently existing. The Prepayment Premium shall also be payable in the event the Obligations (and/or terms of this Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means. EACH LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) (ON BEHALF OF ITSELF AND THE OTHER LOAN PARTIES) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS, OR MAY PROHIBIT, THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. Each Loan Party expressly agrees (to the fullest extent that each may lawfully do so) that: (A) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Prepayment Premium; and (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.06(c)(iv). Each Loan Party expressly acknowledges that its agreement to pay the Prepayment Premium to Lenders as herein described is a material inducement to Lenders to provide the Commitments and make the Loans contemplated hereby. The Borrower acknowledges, and the parties hereto agree, that each Lender has the right to maintain its investment in the Loans free from repayment by the Borrower (except as herein specifically provided for) and that the provision for payment of a Prepayment Premium by the Borrower, in no event shall any mandatory or optional prepayments be funded from the event that the Loans are prepaid or are accelerated as a result proceeds of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstancesany Loan.
1.6.3.5. Each party hereto acknowledges and agrees that Loans of a particular Lender shall be prepaid pursuant to Section 2.06(a) or Section 2.06(b) (as applicable) in the order in which such Loans were made or acquired by such Lender pursuant to Section 2.01.
Appears in 1 contract
Samples: Credit Agreement (InfraREIT, Inc.)
Terms of All Prepayments. 1.6.3.1. Unless expressly set forth otherwise(a) Except as otherwise provided in this Agreement (including Section 2.8 and this Section 2.9), all partial prepayments of the Loans shall amounts to be applied to the outstanding Loans ratably and as set forth in Section 7.02.
1.6.3.2. Each prepayment of Loans shall be accompanied by payment of all accrued interest on the amount prepaid, the Prepayment Premium (other than in the case of Sections 2.06(b)(i), 2.06(b)(ii) and 2.06(b)(v) above) and any additional amounts required connection with mandatory prepayments made pursuant to Section 2.11.
0.0.0.0. Xx later than ten (10) Business Days after receiving a Material Project Documents Prepayment Offer2.8 shall be applied: first, an Event of Loss Prepayment Offerto any accrued fees, a Disposition Proceeds Prepayment Offer costs, charges or a Debt Prepayment Offer (the expiration of such ten (10) Business Day-period, the “Prepayment Offer Deadline”), each Lender shall advise Borrower in writing whether it has elected to accept such prepayment offer, which it shall determine in its sole discretion; provided that any Lender which shall fail to so advise Borrower by the Prepayment Offer Deadline shall have been deemed to have accepted such prepayment offer. Each expenses of the Lenders shall have Agents under the right, but not the obligationLoan Documents in connection with such prepayment; second, to accept or reject its pro rata portion of any Breakage Costs payable to the prepayment offer by Borrower. Borrower shall have no obligation to prepay any amounts Lenders under this Agreement in respect of any declining Xxxxxx’s pro rata portion of the prepayment offer. In connection with such prepayment; third, to any prepayment pursuant to Section 2.06(b)(i), (ii), (iii) and/or (iv), the amount of the Loan prepaid shall be calculated so that the total amount of Loans prepaid, the accrued but unpaid interest on such the Loans being prepaid; and any Prepayment Premium applicable fourth, to such prepayment the outstanding principal of the Loans being prepaid. Amounts prepaid as mandatory prepayments of Loans may not be re-borrowed in respect of the Project in which the Loan was made.
(b) All prepayments of Loans shall be no more than applied among the Net Available AmountLenders according to their respective Proportionate Shares of the Loans being repaid at the time of the applicable prepayment.
0.0.0.0. Xx is understood (c) The application of any prepayment pursuant to Sections 2.7 and agreed that if the Obligations are accelerated, otherwise become due prior 2.8 shall be (i) made first to the Maturity Date or are still outstanding as of the Maturity DateBase Rate Loans and second to LIBOR Loans, in each casecase pro rata among such Base Rate Loans or LIBOR Loans, as applicable, and (ii) applied in respect inverse order of maturity, except for prepayments made under Sections 2.8(d) or (f), which shall be applied on a pro rata basis to maturities.
(d) Upon the prepayment of any Event of Default Loan (including, but not limited to, upon the occurrence of whether such prepayment is an optional prepayment or a bankruptcy or insolvency event (including the acceleration of claims by operation of law)mandatory prepayment), the Prepayment Premium that would have applied if, at Borrower shall pay to the -53- US-DOCS\150507763.9 Bakersfield Refinery – Senior Credit Agreement |US-DOCS\150507763.15|| time Administrative Agent for the account of each Lender which made such Loan (i) all accrued interest to the date of such acceleration, Borrower had prepaid, refinanced, substituted or replaced any or all of the Loan as contemplated in Section 2.06(a) (any such event, a “Prepayment Premium Event”), will also be due and payable without any further action (including any notice requirements otherwise applicable to Prepayment Premium Events, if any) as though a Prepayment Premium Event had occurred and such Prepayment Premium shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. Any Prepayment Premium payable above shall be presumed to be the liquidated damages sustained by each Lender as the result of the early termination and Borrower agrees that it is reasonable under the circumstances currently existing. The Prepayment Premium 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. EACH LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) (ON BEHALF OF ITSELF AND THE OTHER LOAN PARTIES) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS, OR MAY PROHIBIT, THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. Each Loan Party expressly agrees (prepayment owed pursuant to the fullest extent that each may lawfully do so) that: (A) terms of this Agreement on the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counselamount prepaid; (Bii) all accrued fees to the Prepayment Premium shall be payable notwithstanding date of such prepayment owed pursuant to the then prevailing market rates at terms of this Agreement corresponding to 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 Prepayment Premiumamount being prepaid; and (Diii) if such prepayment is the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.06(c)(iv). Each Loan Party expressly acknowledges that its agreement to pay the Prepayment Premium to Lenders as herein described is a material inducement to Lenders to provide the Commitments and make the Loans contemplated hereby. The Borrower acknowledges, and the parties hereto agree, that each Lender has the right to maintain its investment in the Loans free from repayment by the Borrower (except as herein specifically provided for) and that the provision for payment prepayment of a Prepayment Premium LIBOR Loan on a day other than the last day of an Interest Period for such LIBOR Loan, all Breakage Costs incurred by the Borrower, in the event that the Loans are prepaid or are accelerated such Lender as a result of an such prepayment. Loans prepaid or repaid may not be re-borrowed with regard to the Project such Loan was originally made in respect of.
(e) In no event shall any mandatory or optional prepayments be funded from the proceeds of any Loan.
(f) Upon the repayment in full of the Loans allocated to a Project (and all related Obligations), the return of any issued Letters of Credit in respect of such Project to the Issuing Bank and the written request of the Borrower to terminate any Commitment allocated to such Project (the “Project Discharge Date”), the Administrative Agent, Collateral Agent, Lenders and the Issuing Bank agree to release from the Collateral any Lien granted by such Project Company in such Project Company’s assets, any Lien granted by the owner of such Project Company in the membership interests in such Project Company, and any Lien granted by the owner of the applicable Holdco in the membership interests in such Holdco (to the extent Holdco solely owned such Project Company). The parties hereto agree to amend this Agreement and the Security Agreement (to remove the pledge of any relevant Holdco, if applicable) as necessary to reflect the removal of the Collateral permitted pursuant to this Section 2.9(f), in addition, upon the removal of the Collateral related to a Project as permitted above, all terms in Schedule 1.1B related to such Project shall be deemed to have been removed from this Agreement.
(g) In connection with any Project Discharge Date, excluding any Project Discharge Date occurring from and after the date a Project reaches COD, the Borrower shall obtain the prior written consent from the Administrative Agent and the Lenders prior to removing, in the aggregate, Projects from the Collateral in excess of 10% of the total expected aggregate nameplate capacity of all Projects that have been allocated Loans and Commitments hereunder as of such date, as calculated by the Administrative Agent; provided, however, that such consent shall not be required if, during the existance of a Default or Event of Default, is intended all of the outstanding Obligations relating to provide compensation for the deprivation of such right under such circumstancesall defaulted Projects are prepaid.
1.6.3.5. Each party hereto acknowledges and agrees that Loans of a particular Lender shall be prepaid pursuant to Section 2.06(a) or Section 2.06(b) (as applicable) in the order in which such Loans were made or acquired by such Lender pursuant to Section 2.01.
Appears in 1 contract
Samples: Credit Agreement (Sunpower Corp)
