Voluntary Prepayment; Mandatory Prepayment. (a) Borrower may voluntarily prepay the Loan in whole but not in part, in cash, at any time, together with accrued and unpaid Fixed Interest on the amount prepaid, together with any additional amounts due in respect thereof pursuant to clause (c) below, and all other Obligations then outstanding together with all other amounts in respect thereof. (b) If any Prepayment Trigger occurs, then the outstanding principal amount of the Loan plus any accrued and unpaid interest thereon shall be immediately due and payable hereunder, to the extent permitted by law, together, if applicable, with any additional amounts due in respect thereof pursuant to clause (c) or clause (d) below, as the case may be, and all other Obligations then outstanding together with all other amounts in respect thereof, and the provisions of this Section 3.02 shall apply. (c) In the case of (i) a voluntary prepayment of the Loan pursuant to Section 3.02(a) occurring not later than ninety (90) days following the Prepayment Event Date with respect to a Prepayment Trigger or (ii) a voluntary prepayment of the Loan pursuant to Section 3.02(a) that occurs at any time that no uncured Prepayment Trigger exists, such prepayment shall be in the amount indicated in the second column of the table below (determined as of the Prepayment Event Date: (a) as described in Section 3.02(c)(i) or 3.02(c)(ii) during the period below Prepayment Amount During the 30 month period commencing on the Closing Date 100% of the outstanding principal balance of the Loan at the date of occurrence of the Prepayment Trigger or the date fixed for such voluntary prepayment (such date, as the case may be, the “Prepayment Event Date”), plus an amount equal to all interest that would have accrued on such principal balance (assuming no further amortization thereof) during the period from such Prepayment Event Date through the end of such 30 month period After the 30 month period, and prior to the end of the 42 month period, following the Closing Date 103.0% of the outstanding principal balance of the Loan as at the Prepayment Event Date After the 42 month period, and prior to the end of the 54 month period, following the Closing Date 101.5% of the outstanding principal balance of the Loan as at the Prepayment Event Date After the 54 month period following the Closing Date and thereafter 100% of the outstanding principal balance of the Loan as at the Prepayment Event Date (d) In the case of a prepayment due to a Prepayment Trigger other than a Prepayment Trigger covered by Section 3.02 (c)(i), such prepayment shall be in the amount indicated in the second column of the table below (determined as of the Prepayment Event Date): With respect to a Prepayment Trigger covered under Section 3.02(d) occurring during the period below Prepayment Amount During the first 12-month period commencing on the Closing Date 110.0% of the outstanding principal balance of the Loan as at the Prepayment Event Date During the second 12-month period following the Closing Date 107.5% of the outstanding principal balance of the Loan as at the Prepayment Event Date During the third 12-month period following the Closing Date 105.0% of the outstanding principal balance of the Loan as at the Prepayment Event Date During the fourth 12-month period following the Closing Date 101.5% of the outstanding principal balance of the Loan as at the Prepayment Event Date During the fifth 12-month period following the Closing Date and thereafter 100% of the outstanding principal balance of the Loan as at the Prepayment Event Date (e) In the event that, on a date more than ninety (90) days following the Prepayment Event Date with respect to a Prepayment Trigger that remains uncured, the Borrower elects to voluntarily prepay the Loan in whole but not in part pursuant to Section 3.02(a), the Borrower shall pay, in addition to the outstanding principal amount of the Loan plus any accrued and unpaid interest thereon, the greater of the prepayment amount determined pursuant to clause (c) above and the prepayment amount determined pursuant to clause (d) above, in either case, with respect to such Prepayment Event Date. (f) In the event that Lender exercises its option in Section 3.01(b), Borrower shall have the right to prepay the Loan in whole, but not in part, at any time during the one hundred twenty (120) day period following its receipt of notice of Lender’s election pursuant to Section 3.01(b). Such prepayment of the Loan shall be made together with accrued and unpaid Fixed Interest on the amount prepaid and all other Obligations then outstanding together with all other amounts in respect thereof, but shall not require the payment of any prepayment amount described in clause (c) or clause (d) above. (g) In addition to the amounts in clause (c), (d), (e) or (f) above, in connection with the prepayment in full of the Loan, any unpaid amounts in respect of such prepaid Loan not consisting of principal or Fixed Interest (i.e., any unpaid amounts for indemnification, tax gross-up, default interest, expense reimbursement and other amounts not consisting of principal or interest) shall be immediately due and payable. (h) If the Borrower wishes to make a prepayment pursuant to clause (a), (e) or (f) above, it shall give the Lender irrevocable notice in the form set forth in Exhibit A (a “Notice of Prepayment”) to that effect not later than the 30th day before the date of the prepayment (the “Prepayment Date”), specifying the Prepayment Date (which shall be a Business Day) and showing the calculation of the amount to be prepaid and all other amounts payable in connection therewith under this Section 3.02. Such Notice of Prepayment shall constitute Borrower’s irrevocable commitment to prepay the Loan and all such other amounts on that Prepayment Date.
Appears in 1 contract
Samples: Loan Agreement
Voluntary Prepayment; Mandatory Prepayment. (a) Borrower may voluntarily prepay the Loan in whole but not in part, in cash, at any time, together with accrued and unpaid Fixed Interest on the amount prepaid, together with any additional amounts due in respect thereof pursuant to clause (c) below, and all other Obligations then outstanding together with all other amounts in respect thereof.
(b) If any Prepayment Trigger occurs, then the outstanding principal amount of the Loan plus any accrued and unpaid interest thereon shall be immediately due and payable hereunder, to the extent permitted by law, together, if applicable, with any additional amounts due in respect thereof pursuant to clause (c) or clause (d) below, as the case may be, and all other Obligations then outstanding together with all other amounts in respect thereof, and the provisions of this Section 3.02 shall apply.
(c) In the case of (i) a voluntary prepayment of the Loan pursuant to Section 3.02(a) occurring not later than ninety (90) days following the Prepayment Event Date with respect to a Prepayment Trigger or (ii) a voluntary prepayment of the Loan pursuant to Section 3.02(a) that occurs at any time that no uncured Prepayment Trigger exists, such prepayment shall be in the amount indicated in the second column of the table below (determined as of the Prepayment Event Date:
(a) as described in Section 3.02(c)(i) or 3.02(c)(ii) during the period below Prepayment Amount During the 30 month period commencing on the Closing Date 100% of the outstanding principal balance of the Loan at the date of occurrence of the Prepayment Trigger or the date fixed for such voluntary prepayment (such date, as the case may be, the “Prepayment Event Date”), plus an amount equal to all interest that would have accrued on such principal balance (assuming no further amortization thereof) during the period from such Prepayment Event Date through the end of such 30 month period After the 30 month period, and prior to the end of the 42 month period, following the Closing Date 103.0% of the outstanding principal balance of the Loan as at the Prepayment Event Date After the 42 month period, and prior to the end of the 54 month period, following the Closing Date 101.5% of the outstanding principal balance of the Loan as at the Prepayment Event Date After the 54 month period following the Closing Date and thereafter 100% of the outstanding principal balance of the Loan as at the Prepayment Event Date
(d) In the case of a prepayment due to a Prepayment Trigger other than a Prepayment Trigger covered by Section 3.02 (c)(i), such prepayment shall be in the amount indicated in the second column of the table below (determined as of the Prepayment Event Date): With respect to a Prepayment Trigger covered under Section 3.02(d) occurring during the period below Prepayment Amount During the first 12-month period commencing on the Closing Date 110.0% of the outstanding principal balance of the Loan as at the Prepayment Event Date During the second 12-month period following the Closing Date 107.5% of the outstanding principal balance of the Loan as at the Prepayment Event Date During the third 12-month period following the Closing Date 105.0% of the outstanding principal balance of the Loan as at the Prepayment Event Date During the fourth 12-month period following the Closing Date 101.5% of the outstanding principal balance of the Loan as at the Prepayment Event Date During the fifth 12-month period following the Closing Date and thereafter 100% of the outstanding principal balance of the Loan as at the Prepayment Event Date
(e) In the event that, on a date more than ninety (90) days following the Prepayment Event Date with respect to a Prepayment Trigger that remains uncured, the Borrower elects to voluntarily prepay the Loan in whole but not in part pursuant to Section 3.02(a), the Borrower shall pay, in addition to the outstanding principal amount of the Loan plus any accrued and unpaid interest thereon, the greater of the prepayment amount determined pursuant to clause (c) above and the prepayment amount determined pursuant to clause (d) above, in either case, with respect to such Prepayment Event Date.
(f) In the event that Lender exercises its option in Section 3.01(b), The Borrower shall have the right to prepay the Loan in wholeoption, but not in part, at on any time during the one hundred twenty (120) day period following its receipt of notice of Lender’s election pursuant to Section 3.01(b). Such prepayment of the Loan shall be made together with accrued and unpaid Fixed Interest on the amount prepaid and all other Obligations then outstanding together with all other amounts in respect thereof, but shall not require the payment of any prepayment amount described in clause (c) or clause (d) above.
(g) In addition to the amounts in clause (c), (d), (e) or (f) above, in connection with the prepayment in full of the Loan, any unpaid amounts in respect of such prepaid Loan not consisting of principal or Fixed Interest (i.e., any unpaid amounts for indemnification, tax gross-up, default interest, expense reimbursement and other amounts not consisting of principal or interest) shall be immediately due and payable.
(h) If the Borrower wishes to make a prepayment pursuant to clause (a), (e) or (f) above, it shall give the Lender irrevocable notice in the form set forth in Exhibit A (a “Notice of Prepayment”) to that effect not later than the 30th day before Payment Date after the date of the three (3) year anniversary of the Drawdown Date (including the January 2, 2014 Interest Payment Date, and any Interest Payment Date thereafter), to prepay the Loan, in full or in part, subject to the following terms and conditions:
(i) The Borrower shall give to the Lender written notice of the proposed prepayment (the “First Prepayment Notice”) not less than ten (10) days prior to the date on which the Loan is proposed to be prepaid, which First Prepayment Notice shall state the amount proposed to be prepaid and the proposed prepayment date. The actual amount of the prepayment and the actual date of prepayment (the “Prepayment Date”), specifying ) shall be confirmed (or modified) in a written notice delivered by the Borrower to the Lender (the “Confirming Prepayment Notice”) not less than five (5) Business Days prior to the Prepayment Date stated in the Confirming Prepayment Notice. The Confirming Prepayment Notice may not be revoked or modified.
(which ii) The amount payable in respect of each prepayment shall be a Business Day) and showing the calculation full or partial outstanding principal amount of the Loan stated in the Confirming Prepayment Notice plus any accrued but unpaid interest up to but excluding the Prepayment Date.
(iii) The additional conditions for each partial prepayment are: (y) the minimum principal amount to be prepaid and all other amounts payable in connection therewith under this Section 3.02. Such Notice shall be TEN MILLION U.S. DOLLARS (US$10,000,000.00); and, (z) the principal of Prepayment each prepayment shall constitute Borrower’s irrevocable commitment to prepay be applied against the quarterly principal installments of the Loan and the Final Payment in the inverse order of their maturities as set out herein and in the Loan Payment Schedule (i.e., each prepayment shall be applied first against the Final Payment and then against each quarterly principal installment set out in the Loan Payment Schedule, in inverse order).
(b) Within ten (10) Business Days following any Change of Control, the Borrower shall deliver to the Lender either (i) an irrevocable notice specifying a proposed prepayment date, which date shall be no later than forty-five (45) days from the date of the occurrence of the Change of Control, in which case the Borrower shall repay the Loan, together with any unpaid interest up to but excluding the prepayment date, in full on or before the proposed prepayment date; or (ii) an irrevocable notice describing the transaction or transactions that constitute the Change of Control and offering to repurchase the Loan (through Borrower or its designee) on the date specified in such notice, which date shall be no later than forty-five (45) days from the date of the occurrence of the Change of Control, in which case, if the Lender has accepted such repurchase offer, the Borrower or such designee shall repurchase the Loan, at a price in cash equal to the outstanding principal amount hereof together with interest on the principal amount up to but not including the date of such repurchase, and the Lender shall sell the Loan and transfer all related loan documents to the Borrower or such other amounts on designee upon receipt of such purchase price. In the event that Prepayment Datethe Borrower (itself or through its designee) offers to repurchase the Loan pursuant to the foregoing clause (ii) and the Lender does not accept such offer, then the Loan shall remain in place in accordance with the terms hereof.
Appears in 1 contract
Voluntary Prepayment; Mandatory Prepayment. (a) Borrower may voluntarily prepay the Loan in whole or in part on any Business Day (and shall prepay the Loan pursuant to Section 3.5(d) and in connection with the release of any Property pursuant to Section 2.2), except that no prepayments shall be permitted during the last two Business Days in any Interest Accrual Period unless such prepayment is accompanied by interest in respect of the next succeeding Interest Accrual Period as set forth in the next sentence. Each such prepayment shall be accompanied by (i) the amount of interest theretofore accrued but not unpaid in partrespect of the principal amount so prepaid; plus (ii) the amount of interest which would have accrued on the principal amount so prepaid had it remained outstanding through the end of the Interest Accrual Period in which such prepayment is made (plus, without duplication, in cashthe case of a prepayment during the last two Business Days during an Interest Accrual Period, the amount of interest which would have accrued on the principal amount so prepaid had it remained outstanding through the end of the Interest Accrual Period following the Interest Accrual Period in which such prepayment is made); and for avoidance of doubt, no interest shall be payable in respect of the amount so prepaid after payment of the amounts set forth herein on the date of such prepayment. In addition, if such prepayment is made during the Spread Maintenance Period, such prepayment shall be accompanied by the applicable Spread Maintenance Amount; provided, however, that no Spread Maintenance Amount shall be payable with respect to (x) the first $50 million of prepayments in the aggregate that are made in connection with releases of Properties pursuant to Section 2.2 or (y) any prepayment of the Loan made pursuant to Section 3.5(d), except for any portion thereof constituting a Borrower Election Amount for which the applicable Spread Maintenance Amount shall be payable. In the event that Borrower makes a prepayment of the Loan in accordance with the provisions of this Agreement on a Business Day that falls from and including the second to last day in an Interest Accrual Period to but excluding the first succeeding Interest Determination Date immediately following such Payment Date (each such period, an “Assumed Note Rate Period”), it may be impossible for Borrower and Lender to calculate with certainty the interest that would have accrued at any time, together with accrued and unpaid Fixed Interest the applicable interest rate on the amount prepaid, together with any additional amounts due in respect thereof pursuant to clause (c) below, and all other Obligations then outstanding together with all other amounts in respect thereof.
(b) If any Prepayment Trigger occurs, then prepaid through the outstanding principal amount end of the Loan plus any accrued and unpaid interest thereon shall be immediately due and payable hereunder, to the extent permitted by law, together, if applicable, with any additional amounts due in respect thereof pursuant to clause (c) Interest Accrual Period whose LIBOR or clause (d) belowPrime Rate, as the case may be, and all other Obligations then outstanding together with all other amounts is determined on such Interest Determination Date. Accordingly, in respect thereofthe event that any portion of the Loan is prepaid during an Assumed Note Rate Period, and the provisions interest that would have accrued on such prepaid amount at the applicable Interest Rate through the end of this Section 3.02 such Interest Accrual Period shall apply.
be estimated based on an interest rate (cthe “Assumed Note Rate”) In equal to (1) in the case of a LIBOR Loan, the sum of (i) a voluntary LIBOR calculated in accordance with the definition of “LIBOR” herein, but assuming that the Interest Determination Date used in such definition is the date that is two Business Days prior to the date on which such prepayment of the Loan pursuant to Section 3.02(a) occurring not later than ninety (90) days following the Prepayment Event Date with respect to a Prepayment Trigger or is made, plus (ii) the applicable Spread, plus (iii) 1.00% , or (2) in the case of a voluntary Prime Rate Loan, the sum of (i) the Prime Rate calculated in accordance with the definition of “Prime Rate” herein, but assuming that the Interest Determination Date used in such definition is the date that is two Business Days prior to the date on which such prepayment is made, plus (ii) the applicable Prime Rate Spread, plus (iii) 1.00% (the amount of interest prepaid based on either of the Loan pursuant to Section 3.02(a) that occurs at any time that no uncured Prepayment Trigger existsforegoing calculations, such prepayment shall be in the amount indicated in the second column of the table below (determined as of the Prepayment Event Date:
(a) as described in Section 3.02(c)(i) or 3.02(c)(ii) during the period below Prepayment Amount During the 30 month period commencing “Assumed Note Rate Payment”). Thereafter, on the Closing Interest Determination Date 100% of for the outstanding principal balance of the Loan at the date of occurrence of the Prepayment Trigger applicable Interest Accrual Period, Lender shall determine LIBOR or the date fixed for such voluntary prepayment (such datePrime Rate, as the case may be, with respect to such Interest Accrual Period in accordance with the definition of “Prepayment Event LIBOR” or “Prime Rate”, as the case may be, set forth herein. If it is determined by Lender that LIBOR or the Prime Rate, as the case may be, as so determined for the applicable Interest Accrual Period plus the applicable Spread or Prime Rate Spread, as the case may be, is less than the Assumed Note Rate, Lender shall credit against the amount payable to Lender by Borrower on the next succeeding Payment Date an amount (without interest) equal to the difference between (x) the Assumed Note Rate Payment and (y) the amount of interest which would have been payable on the prepaid amount based on LIBOR or the Prime Rate, as the case may be, as determined on the Interest Determination Date”). Alternatively, in the event that it is determined that LIBOR or the Prime Rate, as the case may be, as determined on the Interest Determination Date plus the Spread or the Prime Rate Spread, as the case may be, is greater than the Assumed Note Rate, Borrowers shall pay to Administrative Agent, for the benefit of Lender, without additional interest or other late charges or penalties on the Payment Date that falls during such Interest Accrual Period an amount equal to all the difference between (x) the amount of interest that which would have accrued been payable on such principal balance the prepaid amount based on LIBOR or the Prime Rate, as the case may be, as determined on the Interest Determination Date and (assuming no further amortization thereofy) during the period from such Assumed Note Rate Payment.
(b) As a condition to any voluntary prepayment, Borrower shall give Administrative Agent written notice (a “Prepayment Event Date through the end Notice”) of such 30 month period After the 30 month periodits intent to prepay, which notice must be given at least five Business Days and not more than 60 days prior to the end Business Day upon which prepayment is to be made and must specify the Business Day on which such prepayment is to be made and the amount of such prepayment. If any such notice is given, then, subject to the 42 month periodimmediately succeeding sentence, following the Closing Date 103.0% amount specified in such notice will be due and payable on the date specified therein. Notwithstanding the foregoing, if no Event of Default is then continuing, such Prepayment Notice may be rescinded or amended by written notice to Administrative Agent (for example, to adjourn the outstanding principal balance prepayment date or the amount of such prepayment) without the Loan as at need to once again comply with the Prepayment Event Date After the 42 month period, and prior to the end of the 54 month period, following the Closing Date 101.5% of the outstanding principal balance of the Loan as at the Prepayment Event Date After the 54 month Notice time period following the Closing Date and thereafter 100% of the outstanding principal balance of the Loan as at the Prepayment Event Date
(d) In the case of a prepayment due to a Prepayment Trigger other than a Prepayment Trigger covered by Section 3.02 (c)(i), such prepayment shall be in the amount indicated in the second column of the table below (determined as of the Prepayment Event Date): With respect to a Prepayment Trigger covered under Section 3.02(d) occurring during the period below Prepayment Amount During the first 12-month period commencing on the Closing Date 110.0% of the outstanding principal balance of the Loan as at the Prepayment Event Date During the second 12-month period following the Closing Date 107.5% of the outstanding principal balance of the Loan as at the Prepayment Event Date During the third 12-month period following the Closing Date 105.0% of the outstanding principal balance of the Loan as at the Prepayment Event Date During the fourth 12-month period following the Closing Date 101.5% of the outstanding principal balance of the Loan as at the Prepayment Event Date During the fifth 12-month period following the Closing Date and thereafter 100% of the outstanding principal balance of the Loan as at the Prepayment Event Date
(e) In the event that, on a date more than ninety (90) days following the Prepayment Event Date with respect to a Prepayment Trigger that remains uncured, the Borrower elects to voluntarily prepay the Loan in whole but not in part pursuant to Section 3.02(a), the Borrower shall pay, in addition to the outstanding principal amount of the Loan plus any accrued and unpaid interest thereon, the greater of the prepayment amount determined pursuant to clause (c) above and the prepayment amount determined pursuant to clause (d) above, in either case, with respect to such Prepayment Event Date.
(f) In the event that Lender exercises its option in Section 3.01(b), Borrower shall have the right to prepay the Loan in whole, but not in part, at any time during the one hundred twenty (120) day period following its receipt of notice of Lender’s election pursuant to Section 3.01(b). Such prepayment of the Loan shall be made together with accrued and unpaid Fixed Interest on the amount prepaid and all other Obligations then outstanding together with all other amounts in respect thereof, but shall not require the payment of any prepayment amount described in clause (c) or clause (d) above.
(g) In addition to the amounts in clause (c), (d), (e) or (f) above, in connection with the prepayment in full of the Loan, any unpaid amounts in respect of such prepaid Loan not consisting of principal or Fixed Interest (i.e., any unpaid amounts for indemnification, tax gross-up, default interest, expense reimbursement and other amounts not consisting of principal or interest) shall be immediately due and payable.
(h) If the Borrower wishes to make a prepayment pursuant to clause (a), (e) or (f) above, it shall give the Lender irrevocable notice in the form requirements set forth in Exhibit A (a “Notice the first sentence of Prepayment”) to that effect not later this Section 2.1(b); provided, however, no such amendment shall result in Administrative Agent having fewer than the 30th day before the date two Business Days advance notice of the newly proposed prepayment (date, and any such newly proposed prepayment date shall not be more than 30 days after the “prepayment date specified in the original Prepayment Date”)Notice, specifying the Prepayment Date (which and provided further that Borrower shall be a Business Day) compensate Lender and showing the calculation of the amount to be prepaid Agents for any and all other amounts payable in connection therewith under this Section 3.02. Such Notice of Prepayment shall constitute Borrower’s irrevocable commitment to prepay the Loan and all Damages incurred by Lender, any Agent and/or their respective agents resulting from such other amounts on that Prepayment Daterescission.
Appears in 1 contract
Samples: Loan Agreement (American Casino & Entertainment Properties LLC)
Voluntary Prepayment; Mandatory Prepayment. (a) Borrower may voluntarily prepay the Loan in whole or in part on any Business Day, except that no prepayments shall be permitted during the last two Business Days in any Interest Accrual Period unless such prepayment is accompanied by interest in respect of the next succeeding Interest Accrual Period as set forth in the next sentence. Each such prepayment shall be accompanied by (i) the amount of interest theretofore accrued but not unpaid in partrespect of the principal amount so prepaid; plus (ii) the amount of interest which would have accrued on the principal amount so prepaid had it remained outstanding through the end of the Interest Accrual Period in which such prepayment is made (plus, without duplication, in cashthe case of a prepayment during the last two Business Days during an Interest Accrual Period, at any time, together with the amount of interest which would have accrued and unpaid Fixed Interest on the principal amount prepaidso prepaid had it remained outstanding through the end of the Interest Accrual Period following the Interest Accrual Period in which such prepayment is made); and for avoidance of doubt, together no interest shall be payable in respect of the amount so prepaid after payment of the amounts set forth herein on the date of such prepayment. In addition, if such prepayment is made during the Spread Maintenance Period, such prepayment shall be accompanied by the applicable Spread Maintenance Amount. Notwithstanding anything to the contrary herein, (x) simultaneously with any additional amounts due in respect thereof pursuant to clause (c) below, and voluntary prepayment of all other Obligations then outstanding together with all other amounts in respect thereof.
(b) If or any Prepayment Trigger occurs, then portion of the outstanding principal amount of any Mezzanine Loan, Borrower shall make a prepayment hereunder in the amount necessary so that the respective outstanding principal balances of the Loan plus any accrued and unpaid interest thereon each Mezzanine Loan immediately after such prepayments are in the same proportion as they were immediately prior to such prepayments and (y) Borrower shall not be immediately due and payable hereunder, permitted to the extent permitted by law, together, if applicable, with any additional amounts due in respect thereof pursuant to clause (c) or clause (d) below, as the case may be, and all other Obligations then outstanding together with all other amounts in respect thereof, and the provisions of this Section 3.02 shall apply.
(c) In the case of (i) make a voluntary prepayment of the Loan pursuant hereunder unless simultaneously therewith a prepayment of each Mezzanine Loan shall also be made in the amount necessary so that the respective outstanding principal balances of the Loan and each Mezzanine Loan immediately after such prepayment are in the same proportion as they were immediately prior to Section 3.02(a) occurring not later than ninety (90) days following such prepayments. In the Prepayment Event Date with respect to event that Borrower makes a Prepayment Trigger or (ii) a voluntary prepayment of the Loan pursuant in accordance with the provisions of this Agreement on a Business Day that falls from and including the second to Section 3.02(a) last day in an Interest Accrual Period to but excluding the first succeeding Interest Determination Date immediately following such Payment Date (each such period, an “Assumed Note Rate Period”), it may be impossible for Borrower and Lender to calculate with certainty the interest that occurs would have accrued at any time that no uncured Prepayment Trigger existsthe applicable interest rate on the amount then prepaid through the end of the Interest Accrual Period whose LIBOR is determined on such Interest Determination Date. Accordingly, such prepayment shall be in the amount indicated in the second column of the table below (determined as of the Prepayment Event Date:
(a) as described in Section 3.02(c)(i) or 3.02(c)(ii) during the period below Prepayment Amount During the 30 month period commencing on the Closing Date 100% of the outstanding principal balance event that any portion of the Loan at the date of occurrence of the Prepayment Trigger or the date fixed for such voluntary prepayment (such date, as the case may beis prepaid during an Assumed Note Rate Period, the “Prepayment Event Date”), plus an amount equal to all interest that would have accrued on such principal balance (assuming no further amortization thereof) during prepaid amount at the period from such Prepayment Event Date applicable Interest Rate through the end of such 30 month period After Interest Accrual Period shall be estimated based on an interest rate (the 30 month period“Assumed Note Rate”) equal to the sum of (i) LIBOR calculated in accordance with the definition of “LIBOR” herein, and but assuming that the Interest Determination Date used in such definition is the date that is two Business Days prior to the end of the 42 month period, following the Closing Date 103.0% of the outstanding principal balance of the Loan as at the Prepayment Event Date After the 42 month period, and prior to the end of the 54 month period, following the Closing Date 101.5% of the outstanding principal balance of the Loan as at the Prepayment Event Date After the 54 month period following the Closing Date and thereafter 100% of the outstanding principal balance of the Loan as at the Prepayment Event Date
(d) In the case of a prepayment due to a Prepayment Trigger other than a Prepayment Trigger covered by Section 3.02 (c)(i), date on which such prepayment shall be in is made, plus (ii) the applicable Spread, plus (iii) 1.00% (the amount indicated in the second column of the table below (determined as of the Prepayment Event Date): With respect to a Prepayment Trigger covered under Section 3.02(d) occurring during the period below Prepayment Amount During the first 12-month period commencing interest prepaid based on the Closing Date 110.0% of foregoing calculation, the outstanding principal balance of the Loan as at the Prepayment Event Date During the second 12-month period following the Closing Date 107.5% of the outstanding principal balance of the Loan as at the Prepayment Event Date During the third 12-month period following the Closing Date 105.0% of the outstanding principal balance of the Loan as at the Prepayment Event Date During the fourth 12-month period following the Closing Date 101.5% of the outstanding principal balance of the Loan as at the Prepayment Event Date During the fifth 12-month period following the Closing Date and thereafter 100% of the outstanding principal balance of the Loan as at the Prepayment Event Date
(e) In the event that“Assumed Note Rate Payment”). Thereafter, on a date more than ninety (90) days following the Prepayment Event Interest Determination Date with respect to a Prepayment Trigger that remains uncuredfor the applicable Interest Accrual Period, the Borrower elects to voluntarily prepay the Loan in whole but not in part pursuant to Section 3.02(a), the Borrower Lender shall pay, in addition to the outstanding principal amount of the Loan plus any accrued and unpaid interest thereon, the greater of the prepayment amount determined pursuant to clause (c) above and the prepayment amount determined pursuant to clause (d) above, in either case, determine LIBOR with respect to such Prepayment Event Interest Accrual Period in accordance with the definition of “LIBOR” herein. If it is determined by Lender that LIBOR as so determined for the applicable Interest Accrual Period plus the applicable Spread is less than the Assumed Note Rate, Lender shall promptly refund to Borrower, without interest, an amount equal to the difference between (x) the Assumed Note Rate Payment and (y) the amount of interest which would have been payable on the prepaid amount based on LIBOR as determined on the Interest Determination Date. Alternatively, in the event that it is determined that LIBOR as determined on the Interest Determination Date plus the Spread is greater than the Assumed Note Rate, Borrowers shall pay to Lender, without additional interest or other late charges or penalties on the Payment Date that falls during such Interest Accrual Period an amount equal to the difference between (x) the amount of interest which would have been payable on the prepaid amount based on LIBOR as determined on the Interest Determination Date and (y) the Assumed Note Rate Payment.
(fb) In the event that Lender exercises its option in Section 3.01(b)As a condition to any voluntary prepayment, Borrower shall have give Lender written notice (a “Prepayment Notice”) of its intent to prepay, which notice must be given at least five Business Days and not more than 60 days prior to the right Business Day upon which prepayment is to prepay the Loan in whole, but not in part, at any time during the one hundred twenty (120) day period following its receipt of notice of Lender’s election pursuant to Section 3.01(b). Such prepayment of the Loan shall be made together with accrued and unpaid Fixed Interest must specify the Business Day on which such prepayment is to be made and the amount of such prepayment. If any such notice is given, then, subject to the immediately succeeding sentence, the amount specified in such notice will be due and payable on the date specified therein. Notwithstanding the foregoing, if no Event of Default is then continuing, such Prepayment Notice may be rescinded or amended by written notice to Lender (for example, to adjourn the prepayment date or the amount prepaid and all other Obligations then outstanding together with all other amounts in respect thereof, but shall not require of such prepayment) without the payment of any prepayment amount described in clause (c) or clause (d) above.
(g) In addition need to the amounts in clause (c), (d), (e) or (f) above, in connection once again comply with the prepayment in full of the Loan, any unpaid amounts in respect of such prepaid Loan not consisting of principal or Fixed Interest (i.e., any unpaid amounts for indemnification, tax gross-up, default interest, expense reimbursement and other amounts not consisting of principal or interest) shall be immediately due and payable.
(h) If the Borrower wishes to make a prepayment pursuant to clause (a), (e) or (f) above, it shall give the Lender irrevocable notice in the form Prepayment Notice time period requirements set forth in Exhibit A (a “Notice the first sentence of Prepayment”) to that effect not later this Section 2.1(b); provided, however, no such amendment shall result in Lender having fewer than the 30th day before the date two Business Days advance notice of the newly proposed prepayment (date, and any such newly proposed prepayment date shall not be more than 30 days after the “prepayment date specified in the original Prepayment Date”)Notice, specifying the Prepayment Date (which and provided further that Borrower shall be a Business Day) and showing the calculation of the amount to be prepaid compensate Lender for any and all other amounts payable in connection therewith under this Section 3.02. Such Notice of Prepayment shall constitute Borrower’s irrevocable commitment to prepay the Loan and all Damages incurred by Lender and/or its agents resulting from such other amounts on that Prepayment Daterescission.
Appears in 1 contract
Samples: Loan Agreement (American Casino & Entertainment Properties LLC)
Voluntary Prepayment; Mandatory Prepayment. (a) If as of any Measuring Date (as hereinafter defined), the average of the Last Reported Bid Prices of Common Stock for the twenty (20) consecutive Trading Days ending on the Trading Day prior to the Measuring Date exceeds 200% of the Conversion Price in effect on the Measuring Date and provided no Event of Default is continuing, then Borrower may may, if Borrower has not elected to force conversion of the Note in accordance with Section 8.09, voluntarily prepay the Loan Loan, in whole but not or in part, in cash, at on any time, together with accrued and unpaid Fixed Business Day upon not less than five (5) Business Days’ notice of such intended prepayment. Any prepayment hereunder shall be accompanied by interest through the end of the applicable Interest on Accrual Period (calculated as if the amount prepaidprepaid were outstanding for the entire Interest Accrual Period); provided, together however, that Lender may delay the date for such prepayment if, prior to the date of such intended prepayment, Lender has given notice of its election to convert the Note and if any approval is required of a Governmental Authority or a waiting period is required to be satisfied in connection with such conversion, then such delay shall remain in effect until receipt of such approval or the expiration or earlier termination of any additional amounts due in respect thereof pursuant to clause (c) below, and all other Obligations then outstanding together with all other amounts in respect thereofsuch waiting period.
(b) If any Prepayment Trigger occursWithin three (3) Business Days of receipt by Borrower of Rights Offering Funds, then Borrower shall prepay the outstanding principal amount of the Loan plus any accrued and unpaid interest thereon shall be immediately due and payable hereunder, to the extent permitted by law, together, if applicable, with any additional amounts due Note in respect thereof pursuant to clause (c) or clause (d) below, as the case may be, and all other Obligations then outstanding together with all other amounts in respect thereof, and the provisions of this Section 3.02 shall apply.
(c) In the case of (i) a voluntary prepayment of the Loan pursuant to Section 3.02(a) occurring not later than ninety (90) days following the Prepayment Event Date with respect to a Prepayment Trigger or (ii) a voluntary prepayment of the Loan pursuant to Section 3.02(a) that occurs at any time that no uncured Prepayment Trigger exists, such prepayment shall be in the amount indicated in the second column of the table below (determined as of the Prepayment Event Date:
(a) as described in Section 3.02(c)(i) or 3.02(c)(ii) during the period below Prepayment Amount During the 30 month period commencing on the Closing Date 100% of the outstanding principal balance of the Loan at the date of occurrence of the Prepayment Trigger or the date fixed for such voluntary prepayment (such date, as the case may be, the “Prepayment Event Date”), plus an amount equal to all 100% of such Rights Offering Funds. Any prepayment hereunder shall be accompanied by interest that would have accrued on such principal balance (assuming no further amortization thereof) during the period from such Prepayment Event Date through the end of such 30 month period After the 30 month period, and prior to the end of the 42 month period, following the Closing Date 103.0% of the outstanding principal balance of the Loan applicable Interest Accrual Period (calculated as at the Prepayment Event Date After the 42 month period, and prior to the end of the 54 month period, following the Closing Date 101.5% of the outstanding principal balance of the Loan as at the Prepayment Event Date After the 54 month period following the Closing Date and thereafter 100% of the outstanding principal balance of the Loan as at the Prepayment Event Date
(d) In the case of a prepayment due to a Prepayment Trigger other than a Prepayment Trigger covered by Section 3.02 (c)(i), such prepayment shall be in the amount indicated in the second column of the table below (determined as of the Prepayment Event Date): With respect to a Prepayment Trigger covered under Section 3.02(d) occurring during the period below Prepayment Amount During the first 12-month period commencing on the Closing Date 110.0% of the outstanding principal balance of the Loan as at the Prepayment Event Date During the second 12-month period following the Closing Date 107.5% of the outstanding principal balance of the Loan as at the Prepayment Event Date During the third 12-month period following the Closing Date 105.0% of the outstanding principal balance of the Loan as at the Prepayment Event Date During the fourth 12-month period following the Closing Date 101.5% of the outstanding principal balance of the Loan as at the Prepayment Event Date During the fifth 12-month period following the Closing Date and thereafter 100% of the outstanding principal balance of the Loan as at the Prepayment Event Date
(e) In the event that, on a date more than ninety (90) days following the Prepayment Event Date with respect to a Prepayment Trigger that remains uncured, the Borrower elects to voluntarily prepay the Loan in whole but not in part pursuant to Section 3.02(a), the Borrower shall pay, in addition to the outstanding principal amount of the Loan plus any accrued and unpaid interest thereon, the greater of the prepayment amount determined pursuant to clause (c) above and the prepayment amount determined pursuant to clause (d) above, in either case, with respect to such Prepayment Event Date.
(f) In the event that Lender exercises its option in Section 3.01(b), Borrower shall have the right to prepay the Loan in whole, but not in part, at any time during the one hundred twenty (120) day period following its receipt of notice of Lender’s election pursuant to Section 3.01(b). Such prepayment of the Loan shall be made together with accrued and unpaid Fixed Interest on if the amount prepaid and all other Obligations then were outstanding together with all other amounts in respect thereof, but shall not require for the payment of any prepayment amount described in clause (c) or clause (d) aboveentire Interest Accrual Period).
(g) In addition to the amounts in clause (c), (d), (e) or (f) above, in connection with the prepayment in full of the Loan, any unpaid amounts in respect of such prepaid Loan not consisting of principal or Fixed Interest (i.e., any unpaid amounts for indemnification, tax gross-up, default interest, expense reimbursement and other amounts not consisting of principal or interest) shall be immediately due and payable.
(h) If the Borrower wishes to make a prepayment pursuant to clause (a), (e) or (f) above, it shall give the Lender irrevocable notice in the form set forth in Exhibit A (a “Notice of Prepayment”) to that effect not later than the 30th day before the date of the prepayment (the “Prepayment Date”), specifying the Prepayment Date (which shall be a Business Day) and showing the calculation of the amount to be prepaid and all other amounts payable in connection therewith under this Section 3.02. Such Notice of Prepayment shall constitute Borrower’s irrevocable commitment to prepay the Loan and all such other amounts on that Prepayment Date.
Appears in 1 contract
Samples: Loan Agreement (Empire Resorts Inc)