Common use of Applicable Premium Clause in Contracts

Applicable Premium. Upon the making of any prepayment in accordance with Section 2.6 or otherwise (including, without limitation, as a result of acceleration and/or as otherwise contemplated below) at any time prior to the first anniversary of the Closing Date, the Borrower shall pay to Agent, for the account of the Lenders in accordance with their Pro Rata Percentage, the Make-Whole Amount. Notwithstanding anything to the contrary herein, the Borrower acknowledges and agrees that if payment of the Obligations is accelerated or the Term Loan and other Obligations otherwise become due prior to the first anniversary of the Closing 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 applicable law)) or otherwise, the Make-Whole Amount with respect to any optional repayment or prepayment of the Term Loan will also be due and payable immediately as though the Term Loan were prepaid (regardless of whether all or any portion of the Term Loan were or will be paid or prepaid) and 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. The Make-Whole Amount payable above shall be presumed to be the liquidated damages sustained by each Lender as the result of the early redemption and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Make-Whole Amount shall also be payable immediately in the event the Term Loans are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means on any date prior to the first anniversary of the Closing Date. EACH OF THE LOAN PARTIES EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING MAKE-WHOLE AMOUNT IN CONNECTION WITH ANY SUCH ACCELERATION. The Loan Parties expressly agree (to the fullest extent they may lawfully do so) that: (A) the Make-Whole Amount is reasonable and is the product of an arm’s-length transaction between sophisticated business people, ably represented by counsel; (B) the Make-Whole 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 the Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Make-Whole Amount; and (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Loan Parties expressly acknowledge that the Borrower’s agreement to pay the Make-Whole Amount to the Lenders as herein described is a material inducement to the Lenders to provide the Term Loan. For the avoidance of doubt, (i) each reference to the Term Loan in this paragraph shall include all interest (if any) that has been capitalized and added to the principal of the Term Loan from time to time and (ii) from and after the first anniversary of the Closing Date, the Make-Whole Amount may no longer become due or payable under this Section 2.5.

Applicable Premium. Upon In the making event of any prepayment in accordance with Section 2.6 an Applicable Premium Trigger Event, the Issuer shall pay to the Trustee, for payment to the Holders of the Securities, the aggregate principal amount of the Securities being or required to be redeemed, repurchased or otherwise paid plus the Applicable Premium (includingwithout duplication). 128 Without limiting the generality of this Section 10.01, without limitation, it is understood and agreed that if the Securities are accelerated as a result of acceleration and/or as otherwise contemplated below) at any time prior to the first anniversary of the Closing Date, the Borrower shall pay to Agent, for the account of the Lenders in accordance with their Pro Rata Percentage, the Make-Whole Amount. Notwithstanding anything to the contrary herein, the Borrower acknowledges and agrees that if payment of the Obligations is accelerated or the Term Loan and other Obligations otherwise become due prior to the first anniversary of the Closing Date, in each case, in respect of any an Event of Default (including, but not limited toto Section 5.01(i), Section 5.01(j) or upon the occurrence or commencement of a any bankruptcy or insolvency proceeding or other event pursuant to any applicable Debtor Relief Laws (including the acceleration of claims by operation of applicable law)) or otherwise), the Make-Whole Amount with respect to any optional repayment or prepayment of the Term Loan will also be Securities that become due and payable shall include the Applicable Premium determined as of such date if the Securities were optionally redeemed pursuant to this Article 10 on such date, which shall become immediately as though due and payable by the Term Loan were prepaid (regardless of whether all or any portion of Issuer and the Term Loan were or will be paid or prepaid) Guarantors and shall constitute part of the ObligationsObligations as if the Securities were being optionally redeemed or repaid as of such date, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a good faith reasonable estimate and calculation of each Lenderbeneficial holder’s lost profits and/or actual damages as a result thereof. The Make-Whole Amount payable above shall be presumed to be the liquidated damages sustained by each Lender as the result of the early redemption and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Make-Whole Amount Applicable Premium shall also be automatically and immediately due and payable immediately in if the event the Term Loans Obligations are satisfied or released by foreclosure (whether by power of judicial proceedingproceeding or otherwise), deed in lieu of foreclosure foreclosure, or by any other means on in connection with an Event of Default described in the preceding sentence, including without limitation, under a plan of reorganization or similar manner in any date prior bankruptcy, insolvency or similar proceeding. The Applicable Premium payable pursuant to this Indenture shall be presumed to be the first anniversary liquidated damages sustained by each beneficial holder as the result of the Closing Dateearly repayment or prepayment of the Securities (and not unmatured interest or a penalty) and the Issuer and the Guarantors agree that it is reasonable under the circumstances currently existing. EACH OF If the Applicable Premium becomes due and payable pursuant to this Indenture, the Applicable Premium shall be deemed to be principal of the Securities and Obligations under this Indenture and interest shall accrue on the full principal amount of the Securities (including the Applicable Premium). In the event the Applicable Premium is determined not to be due and payable by order of any court of competent jurisdiction, including, without limitation, by operation of the Bankruptcy Code, the Applicable Premium shall nonetheless constitute Obligations under this Indenture for all purposes hereunder. THE LOAN PARTIES ISSUER AND THE GUARANTORS EXPRESSLY WAIVES WAIVE (TO THE FULLEST EXTENT IT THEY MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING MAKE-WHOLE AMOUNT APPLICABLE PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. The Loan Parties Issuer and the Guarantors expressly acknowledge and agree (to the fullest extent they may lawfully do so) that: (A) the Make-Whole Amount Applicable Premium is reasonable and is the product of an arm’s-arm’s length transaction between sophisticated business people, ably represented by counsel; , (B) the Make-Whole Amount Applicable Premium shall each be payable under the circumstances described herein notwithstanding the then-then prevailing market rates at the time payment or redemption is made; , (C) there has been a course of conduct between the Lenders beneficial holders, the Issuer and the Loan Parties Guarantors giving specific consideration in this transaction for such agreement to pay the Make-Whole Amount; and Applicable Premium under the circumstances described herein, (D) the Loan Parties Applicable Premium shall not constitute unmatured interest, whether under section 502(b) of the Bankruptcy Code or otherwise, (E) the Applicable Premium does not constitute a penalty or an otherwise unenforceable or invalid obligation, (F) the Issuer and the Guarantors shall not challenge or question, or support any other person in challenging or questioning, the validity or enforceability of the Applicable Premium or any similar or comparable prepayment fee under the circumstances described herein, and the Issuer and the Guarantors shall be estopped from raising or relying on any judicial decision or ruling questioning the validity or enforceability of any prepayment fee similar or comparable to the Applicable Premium, and (G) the Issuer and the Guarantors shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Loan Parties Issuer and the Guarantors expressly acknowledge that the Borrower’s its agreement to pay or guarantee the Make-Whole Amount payment of the Applicable Premium to the Lenders beneficial holders as herein described is are individually and collectively a material inducement to the Lenders beneficial holders to provide purchase the Term LoanSecurities. For the avoidance of doubt, (i) each Any reference to “par” will include any Applicable Premium or accrued and unpaid interest that is added to principal theretofore so added. The parties acknowledge that the Term Loan Applicable Premium provided for under this Indenture is believed to represent a genuine estimate of the losses that would be suffered by the beneficial holders as a result of the Issuer’s and the Guarantors’ breach of its obligations under this Indenture. The Issuer and the Guarantors waive, to the fullest extent permitted by law, the benefit of any statute affecting its liability hereunder or the enforcement hereof. Nothing in this paragraph shall include all interest (if any) that has been capitalized and added is intended to the principal limit, restrict, or condition any of the Term Loan from time to time Issuer’s and (ii) from and after the first anniversary of the Closing DateGuarantors’ obligations, the Make-Whole Amount may no longer become due rights or payable under this Section 2.5remedies hereunder.

Applicable Premium. Upon In the making event of any prepayment in accordance with Section 2.6 an Applicable Premium Trigger Event, the Issuer shall pay to the Trustee, for payment to the Holders of the Securities, the aggregate principal amount of the Securities being or required to be redeemed, repurchased or otherwise paid plus the Applicable Premium (includingwithout duplication). Without limiting the generality of this Section 10.01, without limitation, it is understood and agreed that if the Securities are accelerated as a result of acceleration and/or as otherwise contemplated below) at any time prior to the first anniversary of the Closing Date, the Borrower shall pay to Agent, for the account of the Lenders in accordance with their Pro Rata Percentage, the Make-Whole Amount. Notwithstanding anything to the contrary herein, the Borrower acknowledges and agrees that if payment of the Obligations is accelerated or the Term Loan and other Obligations otherwise become due prior to the first anniversary of the Closing Date, in each case, in respect of any an Event of Default (including, but not limited toto Section 5.01(i), Section 5.01(j) or upon the occurrence or commencement of a any bankruptcy or insolvency proceeding or other event pursuant to any applicable Debtor Relief Laws (including the acceleration of claims by operation of applicable law)) or otherwise), the Make-Whole Amount with respect to any optional repayment or prepayment of the Term Loan will also be Securities that become due and payable shall include the Applicable Premium determined as of such date if the Securities were optionally redeemed pursuant to this Article 10 on such date, which shall become immediately as though due and payable by the Term Loan were prepaid (regardless of whether all or any portion of Issuer and the Term Loan were or will be paid or prepaid) Guarantors and shall constitute part of the ObligationsObligations as if the Securities were being optionally redeemed or repaid as of such date, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a good faith reasonable estimate and calculation of each Lenderbeneficial holder’s lost profits and/or actual damages as a result thereof. The Make-Whole Amount payable above shall be presumed to be the liquidated damages sustained by each Lender as the result of the early redemption and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Make-Whole Amount Applicable Premium shall also be 128 automatically and immediately due and payable immediately in if the event the Term Loans Obligations are satisfied or released by foreclosure (whether by power of judicial proceedingproceeding or otherwise), deed in lieu of foreclosure foreclosure, or by any other means on in connection with an Event of Default described in the preceding sentence, including without limitation, under a plan of reorganization or similar manner in any date prior bankruptcy, insolvency or similar proceeding. The Applicable Premium payable pursuant to this Indenture shall be presumed to be the first anniversary liquidated damages sustained by each beneficial holder as the result of the Closing Dateearly repayment or prepayment of the Securities (and not unmatured interest or a penalty) and the Issuer and the Guarantors agree that it is reasonable under the circumstances currently existing. EACH OF If the Applicable Premium becomes due and payable pursuant to this Indenture, the Applicable Premium shall be deemed to be principal of the Securities and Obligations under this Indenture and interest shall accrue on the full principal amount of the Securities (including the Applicable Premium). In the event the Applicable Premium is determined not to be due and payable by order of any court of competent jurisdiction, including, without limitation, by operation of the Bankruptcy Code, the Applicable Premium shall nonetheless constitute Obligations under this Indenture for all purposes hereunder. THE LOAN PARTIES ISSUER AND THE GUARANTORS EXPRESSLY WAIVES WAIVE (TO THE FULLEST EXTENT IT THEY MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING MAKE-WHOLE AMOUNT APPLICABLE PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. The Loan Parties Issuer and the Guarantors expressly acknowledge and agree (to the fullest extent they may lawfully do so) that: (A) the Make-Whole Amount Applicable Premium is reasonable and is the product of an arm’s-arm’s length transaction between sophisticated business people, ably represented by counsel; , (B) the Make-Whole Amount Applicable Premium shall each be payable under the circumstances described herein notwithstanding the then-then prevailing market rates at the time payment or redemption is made; , (C) there has been a course of conduct between the Lenders beneficial holders, the Issuer and the Loan Parties Guarantors giving specific consideration in this transaction for such agreement to pay the Make-Whole Amount; and Applicable Premium under the circumstances described herein, (D) the Loan Parties Applicable Premium shall not constitute unmatured interest, whether under section 502(b) of the Bankruptcy Code or otherwise, (E) the Applicable Premium does not constitute a penalty or an otherwise unenforceable or invalid obligation, (F) the Issuer and the Guarantors shall not challenge or question, or support any other person in challenging or questioning, the validity or enforceability of the Applicable Premium or any similar or comparable prepayment fee under the circumstances described herein, and the Issuer and the Guarantors shall be estopped from raising or relying on any judicial decision or ruling questioning the validity or enforceability of any prepayment fee similar or comparable to the Applicable Premium, and (G) the Issuer and the Guarantors shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Loan Parties Issuer and the Guarantors expressly acknowledge that the Borrower’s its agreement to pay or guarantee the Make-Whole Amount payment of the Applicable Premium to the Lenders beneficial holders as herein described is are individually and collectively a material inducement to the Lenders beneficial holders to provide purchase the Term LoanSecurities. For the avoidance of doubt, (i) each Any reference to “par” will include any Applicable Premium or accrued and unpaid interest that is added to principal theretofore so added. The parties acknowledge that the Term Loan Applicable Premium provided for under this Indenture is believed to represent a genuine estimate of the losses that would be suffered by the beneficial holders as a result of the Issuer’s and the Guarantors’ breach of its obligations under this Indenture. The Issuer and the Guarantors waive, to the fullest extent permitted by law, the benefit of any statute affecting its liability hereunder or the enforcement hereof. Nothing in this paragraph shall include all interest (if any) that has been capitalized and added is intended to the principal limit, restrict, or condition any of the Term Loan from time to time Issuer’s and (ii) from and after the first anniversary of the Closing DateGuarantors’ obligations, the Make-Whole Amount may no longer become due rights or payable under this Section 2.5remedies hereunder.

Applicable Premium. (i) Upon the making occurrence of any prepayment in accordance with Section 2.6 or otherwise (including, without limitation, as a result of acceleration and/or as otherwise contemplated below) at any time prior to the first anniversary of the Closing Datean Applicable Premium Trigger Event, the Borrower Borrowers shall pay to the Administrative Agent, for the account of the Lenders in accordance with their Pro Rata Percentage, the Make-Whole Amount. Notwithstanding anything to the contrary herein, the Borrower acknowledges and agrees that if payment of the Obligations is accelerated or the Term Loan and other Obligations otherwise become due prior to the first anniversary of the Closing Date, in each case, Shares (solely 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 applicable lawTerm Loans)) or otherwise, the Make-Whole Amount Applicable Premium. (ii) Any Applicable Premium payable in accordance with respect to any optional repayment or prepayment of the Term Loan will also be due and payable immediately as though the Term Loan were prepaid (regardless of whether all or any portion of the Term Loan were or will be paid or prepaidthis Section 2.06(d) and 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. The Make-Whole Amount payable above shall be presumed to be equal to the liquidated damages sustained by each Lender the Lenders as the result of the early redemption occurrence of the Applicable Premium Trigger Event and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Make-Whole Amount shall also be payable immediately in the event the Term Loans are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means on any date prior to the first anniversary of the Closing Date. EACH OF THE LOAN PARTIES EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING MAKE-WHOLE AMOUNT APPLICABLE PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. (iii) The Loan Parties expressly agree (to the fullest extent they may lawfully do so) that: (A) the Make-Whole Amount Applicable Premium is reasonable and is the product of an arm’s-arm's length transaction between sophisticated business people, ably represented by counsel; (B) the Make-Whole Amount Applicable Premium 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 the Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Make-Whole AmountApplicable Premium; and (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Loan Parties expressly acknowledge that the Borrower’s ; (E) their agreement to pay the Make-Whole Amount to the Lenders as herein described Applicable Premium is a material inducement to the Lenders to provide the Term Loan. For Commitments and make the avoidance Loans, and (F) the Applicable Premium represents a good faith, reasonable estimate and calculation of doubt, (i) each reference the lost profits or damages of the Agents and the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Term Loan Agents and the Lenders or profits lost by the Agents and the Lenders as a result of such Applicable Premium Trigger Event. (iv) Nothing contained in this paragraph Section 2.06(d) shall include all interest (if any) that has been capitalized and added to the principal permit any prepayment of the Term Loan from time to time and (ii) from and after the first anniversary Loans or reduction of the Closing Date, Commitments not otherwise permitted by the Make-Whole Amount may no longer become due terms of this Agreement or payable under this Section 2.5.any other Loan Document. (e)

Applicable Premium. Upon (i) In the making event that all or any portion of the principal of the Loan is repaid or prepaid for any reason (including as a result of any prepayment in accordance mandatory prepayments, voluntary prepayments, payments made following acceleration of the Loans or after an Event of Default), such repayments or prepayments will be made together with Section 2.6 a premium equal to 5% of the amount repaid or prepaid (the “Applicable Premium”). If the Loans are accelerated or otherwise (includingbecome due prior to their maturity date, without limitationin each case, as a result of acceleration and/or as otherwise contemplated below) at any time prior to the first anniversary of the Closing Date, the Borrower shall pay to Agent, for the account of the Lenders in accordance with their Pro Rata Percentage, the Make-Whole Amount. Notwithstanding anything to the contrary herein, the Borrower acknowledges and agrees that if payment of the Obligations is accelerated or the Term Loan and other Obligations otherwise become due prior to the first anniversary of the Closing Date, in each case, in respect of any an Event of Default (including, but not limited to, including upon the occurrence of a bankruptcy or insolvency event (including the acceleration of claims by operation of applicable law)) or otherwise), the Make-Whole Amount amount of principal of and premium on the Loans that becomes due and payable shall equal 100% of the principal amount of the Loans plus the Applicable Premium as if such acceleration or other occurrence were a voluntary prepayment of the Loans accelerated or otherwise becoming due. Without limiting the generality of the foregoing, it is understood and agreed that if the Loans are accelerated or otherwise become due prior to their maturity date, in each case, in respect of any Event of Default (including upon the occurrence of a bankruptcy or insolvency event (including the acceleration of claims by operation of law)), the Applicable Premium applicable with respect to any optional repayment or a voluntary prepayment of the Term Loan Loans will also be due and payable immediately on the date of such acceleration or such other prior due date as though the Term Loan Loans were voluntarily prepaid (regardless as of whether all or any portion of the Term Loan were or will be paid or prepaid) such date and 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 loss as a result thereof. The Make-Whole Amount Any premium payable above shall be presumed to be the liquidated damages sustained by each Lender as the result of the early redemption and the Loan Parties agree Borrower agrees that it is reasonable under the circumstances currently existing. The Make-Whole Amount shall also be payable immediately in the event the Term Loans are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means on any date prior to the first anniversary of the Closing Date. EACH OF THE LOAN PARTIES EXPRESSLY WAIVES WAIVE (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING MAKE-WHOLE AMOUNT APPLICABLE PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. The Loan Parties expressly agree (to the fullest extent they may lawfully do so) that: (A) the Make-Whole Amount is reasonable and is the product of an arm’s-length transaction between sophisticated business people, ably represented by counsel; (B) the Make-Whole 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 the Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Make-Whole Amount; and (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Loan Parties expressly acknowledge that the Borrower’s agreement to pay the Make-Whole Amount to the Lenders as herein described is a material inducement to the Lenders to provide the Term Loan. For the avoidance of doubt, (i) each reference to the Term Loan in this paragraph shall include all interest (if any) that has been capitalized and added to the principal of the Term Loan from time to time and (ii) from and after the first anniversary of the Closing Date, the Make-Whole Amount may no longer become due or payable under this Section 2.5.

Applicable Premium. Upon the making occurrence of any prepayment in accordance with Section 2.6 or otherwise (including, without limitation, as a result of acceleration and/or as otherwise contemplated below) at any time prior to the first anniversary of the Closing Datean Applicable Premium Trigger Event, the Borrower shall pay to Administrative Agent, for the account of the Lenders in accordance with their Pro Rata PercentageLenders, the Make-Whole AmountApplicable Premium. Notwithstanding Without limiting the generality of the foregoing Sections 3.3(a) and (b), and notwithstanding anything to the contrary hereinin this Agreement or any other Loan Document, the Borrower acknowledges it is understood and agrees agreed that if payment the Obligations are accelerated as a result of the Obligations is accelerated or the Term Loan occurrence and other Obligations otherwise become due prior to the first anniversary of the Closing Date, in each case, in respect continuance 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 applicable law)) law or otherwise), the Make-Whole Amount with respect to any optional repayment or prepayment Applicable Premium, if any, determined as of the Term Loan date of acceleration, will also be due and payable immediately and will be treated and deemed as though the Term Loan Loans were prepaid (regardless as of whether all or any portion of the Term Loan were or will be paid or prepaid) such date and shall constitute part of the Obligations, Obligations for all purposes herein. Any Applicable Premium payable 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. The Make-Whole Amount payable above accordance with this Section 3.3(f) shall be presumed to be equal to the liquidated damages sustained by each Lender the Lenders as the result of the early redemption occurrence of the Applicable Premium Trigger Event, and the Borrower and the other Loan Parties agree that it is reasonable under the circumstances currently existing. The Make-Whole Amount Applicable Premium, if any, shall also be payable immediately in the event the Term Loans 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 on any date prior to the first anniversary of the Closing Datemeans. EACH OF THE BORROWERS AND THE OTHER LOAN PARTIES EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING MAKE-WHOLE AMOUNT APPLICABLE PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. The Borrower and the other Loan Parties expressly agree (to the fullest extent they may lawfully do so) that: that (A) the Make-Whole Amount Applicable Premium is reasonable and is the product of an arm’s-arm’s length transaction between sophisticated business people, ably represented by counsel; , (B) the Make-Whole Amount Applicable Premium 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 the Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Make-Whole Amount; and Applicable Premium, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Loan Parties expressly acknowledge that the Borrower’s Section 3.3(f), (E) their agreement to pay the Make-Whole Amount to the Lenders as herein described Applicable Premium is a material inducement to the Lenders to provide the Commitments and make the Term Loan. For Loans, and (F) the avoidance Applicable Premium represents a good faith, reasonable estimate and calculation of doubt, (i) each reference the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Term Loan in this paragraph shall include all interest (if any) that has been capitalized and added to Lenders or profits lost by the principal Lenders as a result of the Term Loan from time to time and (ii) from and after the first anniversary of the Closing Date, the Make-Whole Amount may no longer become due or payable under this Section 2.5such Applicable Premium Trigger Event.

Applicable Premium. Upon In the making event of any prepayment in accordance with Section 2.6 an Applicable Premium Trigger Event, the Issuer shall pay to the Trustee, for payment to the Holders of the Securities, the aggregate principal amount of the Securities being or required to be redeemed, repurchased or otherwise paid plus the Applicable Premium (includingwithout duplication). Without limiting the generality of this Section 10.01, without limitation, it is understood and agreed that if the Securities are accelerated as a result of acceleration and/or as otherwise contemplated below) at any time prior to the first anniversary of the Closing Date, the Borrower shall pay to Agent, for the account of the Lenders in accordance with their Pro Rata Percentage, the Make-Whole Amount. Notwithstanding anything to the contrary herein, the Borrower acknowledges and agrees that if payment of the Obligations is accelerated or the Term Loan and other Obligations otherwise become due prior to the first anniversary of the Closing Date, in each case, in respect of any an Event of Default (including, but not limited toto Section 5.01(i), Section 5.01(j) or upon the occurrence or commencement of a any bankruptcy or insolvency proceeding or other event pursuant to any applicable Debtor Relief Laws (including the acceleration of claims by operation of applicable law)) or otherwise), the Make-Whole Amount with respect to any optional repayment or prepayment of the Term Loan will also be Securities that become due and payable shall include the Applicable Premium determined as of such date if the Securities were optionally redeemed pursuant to this Article 10 on such date, which shall become immediately as though due and payable by the Term Loan were prepaid (regardless of whether all or any portion of Issuer and the Term Loan were or will be paid or prepaid) Guarantors and shall constitute part of the ObligationsObligations as if the Securities were being optionally redeemed or repaid as of such date, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a good faith reasonable estimate and calculation of each Lenderbeneficial holder’s lost profits and/or actual damages as a result thereof. The Make-Whole Amount payable above shall be presumed to be the liquidated damages sustained by each Lender as the result of the early redemption and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Make-Whole Amount Applicable Premium shall also be automatically and immediately due and payable immediately in if the event the Term Loans Obligations are satisfied or released by foreclosure (whether by power of judicial proceedingproceeding or otherwise), deed in lieu of foreclosure foreclosure, or by any other means on in connection with an Event of Default described in the preceding sentence, including without limitation, under a plan of reorganization or similar manner in any date prior bankruptcy, insolvency or similar proceeding. The Applicable Premium payable pursuant to this Indenture shall be presumed to be the first anniversary liquidated damages sustained by each beneficial holder as the result of the Closing Dateearly repayment or prepayment of the Securities (and not unmatured interest or a penalty) and the Issuer and the Guarantors agree that it is reasonable under the circumstances currently existing. EACH OF If the Applicable Premium becomes due and payable pursuant to this Indenture, the Applicable Premium shall be deemed to be principal of the Securities and Obligations under this Indenture and interest shall accrue on the full principal amount of the Securities (including the Applicable Premium). In the event the Applicable Premium is determined not to be due and payable by order of any court of competent jurisdiction, including, without limitation, by operation of the Bankruptcy Code, the Applicable Premium shall nonetheless constitute Obligations under this Indenture for all purposes hereunder. THE LOAN PARTIES ISSUER AND THE GUARANTORS EXPRESSLY WAIVES WAIVE (TO THE FULLEST EXTENT IT THEY MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING MAKE-WHOLE AMOUNT APPLICABLE PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. The Loan Parties Issuer and the Guarantors expressly acknowledge and agree (to the fullest extent they may lawfully do so) that: (A) the Make-Whole Amount Applicable Premium is reasonable and is the product of an arm’s-arm’s length transaction between sophisticated business people, ably represented by counsel; , (B) the Make-Whole Amount Applicable Premium shall each be payable under the circumstances described herein notwithstanding the then-then prevailing market rates at the time payment or redemption is made; , (C) there has been a course of conduct between the Lenders beneficial holders, the Issuer and the Loan Parties Guarantors giving specific consideration in this transaction for such agreement to pay the Make-Whole Amount; and Applicable Premium under the circumstances described herein, (D) the Loan Parties Applicable Premium shall not constitute unmatured interest, whether under section 502(b) of the Bankruptcy Code or otherwise, (E) the Applicable Premium does not constitute a penalty or an otherwise unenforceable or invalid obligation, (F) the Issuer and the Guarantors shall not challenge or question, or support any other person in challenging or questioning, the validity or enforceability of the Applicable Premium or any similar or comparable prepayment fee under the circumstances described herein, and the Issuer and the Guarantors shall be estopped from raising or relying on any judicial decision or ruling questioning the validity or enforceability of any prepayment fee similar or comparable to the Applicable Premium, and (G) the Issuer and the Guarantors shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Loan Parties Issuer and the Guarantors expressly acknowledge that the Borrower’s its agreement to pay or guarantee the Make-Whole Amount payment of the Applicable Premium to the Lenders beneficial holders as herein described is are individually and collectively a material inducement to the Lenders beneficial holders to provide purchase the Term LoanSecurities. For the avoidance of doubt, (i) each Any reference to “par” will include any Applicable Premium or accrued and unpaid interest that is added to principal theretofore so added. The parties acknowledge that the Term Loan Applicable Premium provided for under this Indenture is believed to represent a genuine estimate of the losses that would be suffered by the beneficial holders as a result of the Issuer’s and the Guarantors’ breach of its obligations under this Indenture. The Issuer and the Guarantors waive, to the fullest extent permitted by law, the benefit of any statute affecting its liability hereunder or the enforcement hereof. Nothing in this paragraph shall include all interest (if any) that has been capitalized and added is intended to the principal limit, restrict, or condition any of the Term Loan from time to time Issuer’s and (ii) from and after the first anniversary of the Closing DateGuarantors’ obligations, the Make-Whole Amount may no longer become due rights or payable under this Section 2.5remedies hereunder.

Applicable Premium. Upon the making occurrence of any prepayment in accordance with Section 2.6 or otherwise (including, without limitation, as a result of acceleration and/or as otherwise contemplated below) at any time prior to the first anniversary of the Closing Datean Applicable Premium Trigger Event, the Borrower Borrowers shall pay to Agent, for the ratable account of the Lenders in accordance with their Pro Rata PercentageLenders, the Make-Whole AmountApplicable Premium. Notwithstanding Without limiting the generality of the foregoing and notwithstanding anything to the contrary hereinin this Agreement or any other Loan Document, the Borrower acknowledges it is understood and agrees agreed that if payment the Obligations are accelerated as a result of the Obligations is accelerated or the Term Loan occurrence and other Obligations otherwise become due prior to the first anniversary of the Closing Date, in each case, in respect continuance 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 applicable law)) law or otherwise), the Make-Whole Amount with respect to any optional repayment or prepayment Applicable Premium, if any, determined as of the Term Loan date of acceleration, will also be due and payable immediately and will be treated and deemed as though the Term Loan Loans were prepaid (regardless as of whether all or any portion of the Term Loan were or will be paid or prepaid) such date and shall constitute part of the Obligations, Obligations for all purposes herein. Any Applicable Premium payable 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. The Make-Whole Amount payable above accordance with this Section 2.05(g) shall be presumed to be equal to the liquidated damages sustained by each Lender the Lenders as the result of the early redemption occurrence of the Applicable Premium Trigger Event, and the Borrowers and the other Loan Parties agree that it is reasonable under the circumstances currently existing. THE BORROWERS AND THE OTHER LOAN PARTIES EXPRESSLY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING APPLICABLE PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. The Make-Whole Amount Applicable Premium, if any, shall also be payable immediately in the event the Term Loans 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 on any date prior to the first anniversary of the Closing Date. EACH OF THE LOAN PARTIES EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING MAKE-WHOLE AMOUNT IN CONNECTION WITH ANY SUCH ACCELERATIONmeans. The Borrowers and the other Loan Parties expressly agree that (to the fullest extent they may lawfully do so) that: (Ai) the Make-Whole Amount Applicable Premium is reasonable and is the product of an arm’s-arm’s length transaction between sophisticated business people, ably represented by counsel; , (Bii) the Make-Whole Amount Applicable Premium shall be payable notwithstanding the then-then prevailing market rates at the time payment is made; , (Ciii) there has been a course of conduct between the Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Make-Whole Amount; and Applicable Premium, (Div) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Loan Parties expressly acknowledge that the Borrower’s Section 2.05(g), (v) their agreement to pay the Make-Whole Amount to the Lenders as herein described Applicable Premium is a material inducement to the Lenders to provide the Term Loan. For , and (vi) the avoidance Applicable Premium represents a good faith, reasonable estimate and calculation of doubt, (i) each reference the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Term Loan in this paragraph shall include all interest (if any) that has been capitalized and added to Lenders or profits lost by the principal Lenders as a result of the Term Loan from time to time and (ii) from and after the first anniversary of the Closing Date, the Make-Whole Amount may no longer become due or payable under this Section 2.5any Applicable Premium Trigger Event.