Common use of Yield Maintenance Fee Clause in Contracts

Yield Maintenance Fee. (i) Subject to clause (ii) below, in the event that (A) the Borrower makes any prepayment of Loans pursuant to Section 2.04(a), Section 2.04(b)(vi) or Section 2.04(b)(vii) or (B) the unpaid principal balance of any Loan is accelerated (whether by election or automatically) upon the occurrence of an Event of Default pursuant to Section 6.01 (including any acceleration upon the occurrence of an actual or deemed entry of an order for relief with respect to any Loan Party under the Bankruptcy Code or any other Bankruptcy Law, including, without limitation, upon the occurrence of an Event of Default pursuant to Section 6.01(f)), in each case during the Yield Maintenance Period (the principal amount of such prepayment or amount so accelerated being the “Prepayment Amount”), the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Lenders, a Yield Maintenance Fee in an amount equal to the sum of the interest that would have been payable on the Prepayment Amount (in the absence of such prepayment or acceleration) at a rate per annum equal to the Applicable Margin (x) on all scheduled Interest Payment Dates falling after the date of prepayment or acceleration until the end of the Yield Maintenance Period and (y) if the last day of the Yield Maintenance Period is not an Interest Payment Date, on the last day of the Yield Maintenance Period. (ii) Notwithstanding anything set forth in this Agreement, no Yield Maintenance Fee will be due during any time period that is not the Yield Maintenance Period; provided, however, that, in the event of an acceleration of the Facilities (whether by election or automatically) upon the occurrence of an Event of Default pursuant to Section 6.01 (including any acceleration upon the occurrence of an actual or deemed entry of an order for relief with respect to any Loan Party under the Bankruptcy Code or any other Bankruptcy Law, including, without limitation, upon the occurrence of an Event of Default pursuant to Section 6.01(f)), the Yield Maintenance Fee shall apply and shall be determined pursuant to clause (b)(i) above as if a prepayment occurred on the date of such acceleration.

Yield Maintenance Fee. (i) Subject to clause (ii) below, in the event that (A) the Borrower makes any prepayment of Term A Loans or Term B Loans pursuant to Section 2.04(a), Section 2.04(b)(vi) or Section 2.04(b)(vii) or (B) the unpaid principal balance of any Term A Loan or Term B Loan is accelerated (whether by election or automatically) upon the occurrence of an Event of Default pursuant to Section 6.01 (including any acceleration upon the occurrence of an actual or deemed entry of an order for relief with respect to any Loan Party under the Bankruptcy Code or any other Bankruptcy Law, including, without limitation, upon the occurrence of an Event of Default pursuant to Section 6.01(f)), in each case during the Yield Maintenance Period (the principal amount of such prepayment or amount so accelerated being the “Prepayment Amount”), the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Term Loan A Lenders and the Term Loan B Lenders, a Yield Maintenance Fee in an amount equal to the sum of the interest that would have been payable on the Prepayment Amount (in the absence of such prepayment or acceleration) at a rate per annum equal to the Applicable Margin (x) on all scheduled Interest Payment Dates falling after the date of prepayment or acceleration until the end of the Yield Maintenance Period and (y) if the last day of the Yield Maintenance Period is not an Interest Payment Date, on the last day of the Yield Maintenance Period. (ii) Notwithstanding anything set forth in this Agreement, no Yield Maintenance Fee will be due during any time period that is not the Yield Maintenance Period; provided, however, that, in the event of an acceleration of the Facilities (whether by election or automatically) upon the occurrence of an Event of Default pursuant to Section 6.01 (including any acceleration upon the occurrence of an actual or deemed entry of an order for relief with respect to any Loan Party under the Bankruptcy Code or any other Bankruptcy Law, including, without limitation, upon the occurrence of an Event of Default pursuant to Section 6.01(f)), the Yield Maintenance Fee shall apply and shall be determined pursuant to clause (b)(i) above as if a prepayment occurred on the date of such acceleration.

Yield Maintenance Fee. In consideration for FINOVA's agreement to fund Loan B2, each of the Borrowers agrees to pay FINOVA a fee (i) Subject to clause (ii) below, in the event that (A) the Borrower makes any prepayment of Loans pursuant to Section 2.04(a"Yield Maintenance Fee"), Section 2.04(b)(vi) or Section 2.04(b)(vii) or (B) the unpaid principal balance of any Loan is accelerated (whether by election or automatically) upon the occurrence of an Event of Default pursuant to Section 6.01 (including any acceleration upon the occurrence of an actual or deemed entry of an order for relief with respect to any Loan Party under the Bankruptcy Code or any other Bankruptcy Law, including, without limitation, upon the occurrence of an Event of Default pursuant to Section 6.01(f)), in each case during the Yield Maintenance Period any "Triggering Event" (the principal amount of such prepayment or amount so accelerated being the “Prepayment Amount”), the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Lenders, a Yield Maintenance Fee as hereafter defined) in an amount equal which is sufficient, when added to the sum of the (i) that amount of interest that would have been payable on the Prepayment Amount (in the absence of such prepayment or acceleration) at a rate per annum equal to the Applicable Margin (x) on all scheduled Interest Payment Dates falling after the date of prepayment or acceleration until the end inclusive of the Yield Maintenance Period and (y) if the last day full amount received by FINOVA upon payment of the Yield Maintenance Period is not an Interest Payment Date, on the last day PIK Notes) paid by such Borrower with respect to such Borrower's portion of the Yield Maintenance Period. outstanding principal balance of Loan B2, plus (ii) Notwithstanding anything set forth that portion of the Loan Fee which is allocable to such Borrower's portion of Loan B2 (on a dollar-for-dollar pro rata basis calculated by reference to the committed proceeds allocated to Loan B2), plus (iii) any Prepayment Premium paid in accordance with Paragraph 4 of this AgreementSection 3.1 and attributable to such Borrower's portion of Loan B2, no Yield Maintenance Fee will be due during any time period that is not to cause FINOVA's internal rate of return on the Yield Maintenance Period; provided$1,500,000 originally funded principal amount outstanding in respect of each Borrower, howevercalculated in accordance with accepted financial practice, thatto equal 17% per annum. For purposes of this provision, in the event following events shall constitute "Triggering Events" under the Loan Documents: (i) the occurrence of an the Maturity Date applicable to such Borrower's portion of Loan B2, or the earlier acceleration of the Facilities maturity of such Borrower's portion of Loan B2; (whether by election ii) any prepayment or automaticallyrefinance of such Borrower's portion of the outstanding balance of Loan B2; (iii) upon any sale, transfer, assignment or other disposition of the ownership interests in any Borrower, with the result that ARV is no longer the majority owner of such Borrower; and (iv) any Event of Default shall occur with respect to the Loan (after giving effect to any applicable grace periods). Upon the occurrence of an Event any Triggering Event, the full amount of Default pursuant to Section 6.01 (including any acceleration upon the occurrence of an actual or deemed entry of an order for relief with respect to any Loan Party under the Bankruptcy Code or any other Bankruptcy Law, including, without limitation, upon the occurrence of an Event of Default pursuant to Section 6.01(f)), the Yield Maintenance Fee shall apply become due and payable in full, and shall be determined secured by all Collateral which has been pledged or encumbered in favor of FINOVA by Borrowers, subject to the release provisions set forth in Paragraph 4.5 above. The Yield Maintenance Fee shall be additional compensation to FINOVA in consideration for the funding of Loan B2, and shall not be applied against the outstanding principal, accrued interest, or any other amounts owing to FINOVA in connection with Loan B2. ================================================================================ REPORTING REQUIREMENTS (SECTION 5.2): 1. Borrower shall provide FINOVA with annual operating budgets (including income statements, balance sheets and cash flow statements, by month) for the upcoming fiscal year of Borrower within ninety (90) days prior to the end of each fiscal year of Borrower. 2. Borrower shall provide FINOVA with copies of any notices from any public or private entity having jurisdiction over the lawful operation of the Facilities, within five (5) Business Days after receipt of same. 3. Borrower shall provide FINOVA with copies of any notices received from any applicable licensure or certification authority with respect to the compliance or non-compliance of the Facilities under applicable state or federal law, including any notices of the pendency of any de-certification, de-licensure, non-renewal of licensure or certification or any similar proceedings immediately upon receipt. 4. Borrower shall provide FINOVA with copies of any notices, submissions or other filings made by or on behalf of Borrower to the healthcare regulatory agency for the state in which the Facilities are located or to any municipal public health or safety agency pursuant to clause any applicable law, regulation or ordinance with respect to operation of the Facilities as assisted living communities. 5. Borrower shall provide FINOVA with comparisons showing Borrower's actual operating results achieved for the then current fiscal year compared against results projected in the last annual operating budget provided to FINOVA pursuant to Paragraph 1 above. 6. Borrower shall provide promptly to FINOVA, or shall cause ARV to provide directly to FINOVA, copies of all reports concerning the operation of the Facilities which are prepared by ARV in accordance with the terms of the Management Agreements. 7. Borrower shall provide to FINOVA copies of Borrower's federal income tax returns (b)(iincluding all schedules and attachments thereto) above concurrently with the filing of each such return (but in no event later than the 15th day of the seventh calendar month following the end of Borrower's fiscal year). In the event Borrower files an extension for the time in which to file its federal income tax return, Borrower shall provide to FINOVA a copy of such extension request. ================================================================================ PERMITTED ENCUMBRANCES (SECTION 9.8): Permitted Encumbrances shall mean: 1. Liens, security interests or other encumbrances for taxes, assessments and other governmental charges or levies arising by operation of law in the ordinary course of business for sums which are not yet due and payable, or such liens the enforcement of which are, at all times, effectively and fully stayed and are being contested in good faith by appropriate proceedings diligently conducted, and for which reserves as required under GAAP shall have been established; 2. Liens arising in the ordinary course of business in respect of claims or demands of landlords, carriers, warehousemen, vendors, mechanics, laborers, materialmen, workers, repairmen and other similar Persons, whether arising by operation of law, contractually or otherwise, provided that the amounts respectively secured thereby are not past due or if a prepayment occurred past due, the enforcement of any such liens are at all times stayed, and such liens are being contested in good faith by appropriate proceedings diligently conducted and reserves as required under GAAP shall have been established therefor; 3. Liens in favor of FINOVA; and 4. Those matters set forth on the date of such acceleration.attached Exhibit B.

Yield Maintenance Fee. (i) 1. Subject to clause (ii) below, in the event that (A) the Borrower makes any prepayment of Loans pursuant to Section 2.04(a), Section 2.04(b)(vi) or Section 2.04(b)(vii) or (B) the unpaid principal balance of any Loan is accelerated (whether by election or automatically) upon the occurrence of an Event of Default pursuant to Section 6.01 (including any acceleration upon the occurrence of an actual or deemed entry of an order for relief with respect to any Loan Party under the Bankruptcy Code or any other Bankruptcy Law, including, without limitation, upon the occurrence of an Event of Default pursuant to Section 6.01(f)), in each case during the Yield Maintenance Period (the principal amount of such prepayment or amount so accelerated being the “Prepayment Amount”), the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Lenders, a Yield Maintenance Fee in an amount equal to the sum of the interest that would have been payable on the Prepayment Amount (in the absence of such prepayment or acceleration) at a rate per annum equal to the Applicable Margin (x) on all scheduled Interest Payment Dates falling after the date of prepayment or acceleration until the end of the Yield Maintenance Period and (y) if the last day of the Yield Maintenance Period is not an Interest Payment Date, on the last day of the Yield Maintenance Period. (ii) 2. Notwithstanding anything set forth in this Agreement, no Yield Maintenance Fee will be due during any time period that is not the Yield Maintenance Period; provided, however, that, in the event of an acceleration of the Facilities (whether by election or automatically) upon the occurrence of an Event of Default pursuant to Section 6.01 (including any acceleration upon the occurrence of an actual or deemed entry of an order for relief with respect to any Loan Party under the Bankruptcy Code or any other Bankruptcy Law, including, without limitation, upon the occurrence of an Event of Default pursuant to Section 6.01(f)), the Yield Maintenance Fee shall apply and shall be determined pursuant to clause (b)(i) above as if a prepayment occurred on the date of such acceleration.