Prepayment Premium. (a) Any (i) voluntary payment, repayment, prepayment, satisfaction, replacement or refinancing (including in connection with any payment pursuant to Section 2.20), (ii) mandatory prepayment pursuant to Sections 2.7(c) or (e) (subject to the proviso below), (iii) other than with the consent of each directly affected Noteholder, (A) reduction to the amount or (B) extension of the due dates, in each case, of any principal of, or interest or premium on, any Note (whether in connection with any proceeding under Debtor Relief Laws or otherwise), or (iv) acceleration (including as a result of any Event of Default (including as a result of any proceeding under Debtor Relief Laws), whether automatically or by declaration, or by operation of law), in each case, in advance of the Maturity Date (including upon automatic acceleration of the Notes), of the Notes, whether in whole or in part, shall be at a price equal to (1) 100.0% of the principal amount thereof, plus (2) accrued and unpaid interest as of the date of such repayment or prepayment or other event or occurrence, plus (3) the Prepayment Premium, if any, as of the date of such repayment or prepayment or other event or occurrence; provided that notwithstanding the foregoing, no Prepayment Premium shall be payable upon (I) a mandatory prepayment under Sections 2.7(a), (b) or (d) or (II)(x) a mandatory prepayment under Section 2.7(e) (whether or not such mandatory prepayment, or the event giving rise to such mandatory prepayment, is waived by the Required Noteholders) or (y) a voluntary prepayment in connection with the event giving rise to any mandatory prepayment under Section 2.7(e) that has been waived by the Required Noteholders if, but only if, in the case of clauses (II)(x) and (II)(y), immediately prior to the occurrence of the event giving rise to such mandatory prepayment, the aggregate value of Holdings’ Capital Stock (based on the Most Recent Equity Price (as defined below)) is equal to or exceeds $3,000,000,000. As used above, (i) “Most Recent Equity Price” means the implied valuation for Holdings’ Capital Stock on a fully diluted basis arising from the applicable Equity Monetization Event or, in the event that the applicable Equity Monetization Event does not involve an investment which implies a value for Holdings’ Capital Stock, then the “Most Recent Equity Price” shall mean the price that Holdings’ preferred stock is sold to investors pursuant to the most recent Bona Fide Preferred Equity Offering (as defined below), and (ii) “Bona Fide Preferred Equity Offering” means (A) initially, the issuance by Holdings of its Series E Preferred Stock, and (B) thereafter, any issuance (or series of related issuances) by Holdings after the Closing Date of preferred stock so long as, in the case of this clause (B), the net cash proceeds of such issuance (or series of related issuances) is equal to or greater than $75,000,000.
Appears in 2 contracts
Sources: Note Purchase Agreement (Root, Inc.), Note Purchase Agreement (Root Stockholdings, Inc.)
Prepayment Premium. (a) Any (i) voluntary paymentAfter the Closing Date, repaymentprepayments of Term Loans may be made at any time without premium or penalty (subject to amounts due under Section 2.12(b)(ii)); provided, prepayment, satisfaction, replacement or refinancing (including in connection with that any payment such prepayment pursuant to Section 2.20), (ii) mandatory prepayment pursuant to Sections 2.7(c2.4(c) or (e) (subject to the proviso below), (iii) other than with the consent of each directly affected Noteholder, (A) reduction to the amount or (B) extension of the due dates, in each case, of any principal of, or interest or premium on, any Note (whether in connection with any proceeding under Debtor Relief Laws or otherwiseSection 2.4(d)(ii), or (iv) acceleration (including as a result of any Event of Default (including as a result of any proceeding under Debtor Relief Laws), whether automatically or by declaration, or by operation of law), in each case, in advance payments of the Maturity Date (including upon automatic Term Loans after acceleration of the Notes), of the Notes, whether in whole Term Loans pursuant to Section 9.1 or in partotherwise, shall be at a price equal to (1) 100.0% of accompanied by the principal amount thereof, plus (2) accrued and unpaid interest as of the date of such repayment or prepayment or other event or occurrence, plus (3) the applicable Prepayment Premium, if any.
(ii) The applicable Prepayment Premium, as if any is required pursuant to this Section 2.10(b), shall also be payable in the event the Obligations (and/or this Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding, deed in lieu of foreclosure or by any other means). THE LOAN PARTIES EXPRESSLY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM, IN CONNECTION WITH ANY SUCH FORECLOSURE OR SIMILAR TRANSACTION. The Loan Parties expressly agree that (i) the date Prepayment Premium is reasonable and is the product of such repayment or prepayment or other event or occurrence; provided that notwithstanding an arm’s length transaction between sophisticated business people, ably represented by counsel, (ii) the foregoing, no Prepayment Premium shall be payable upon (I) a mandatory prepayment under Sections 2.7(a)notwithstanding the then prevailing market rates at the time payment is made, (biii) or (d) or (II)(x) their agreement to pay the Prepayment Premium is a mandatory prepayment under Section 2.7(e) (whether or not such mandatory prepayment, or the event giving rise to such mandatory prepayment, is waived by the Required Noteholders) or (y) a voluntary prepayment in connection with the event giving rise to any mandatory prepayment under Section 2.7(e) that has been waived by the Required Noteholders if, but only if, in the case of clauses (II)(x) and (II)(y), immediately prior material inducement to the occurrence of Lenders to make the event giving rise to such mandatory prepayment, the aggregate value of Holdings’ Capital Stock (based on the Most Recent Equity Price (as defined below)) is equal to or exceeds $3,000,000,000. As used above, (i) “Most Recent Equity Price” means the implied valuation for Holdings’ Capital Stock on a fully diluted basis arising from the applicable Equity Monetization Event or, in the event that the applicable Equity Monetization Event does not involve an investment which implies a value for Holdings’ Capital Stock, then the “Most Recent Equity Price” shall mean the price that Holdings’ preferred stock is sold to investors pursuant to the most recent Bona Fide Preferred Equity Offering (as defined below)Term Loans, and (iiiv) “Bona Fide Preferred Equity Offering” means (A) initiallythe Prepayment Premium represents a good faith, reasonable estimate and calculation of the issuance by Holdings lost profits or damages of its Series E Preferred Stockthe Lenders, and (B) thereafter, any issuance (it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or series of related issuances) profits lost by Holdings after the Closing Date of preferred stock so long as, in the case of this clause (B), the net cash proceeds Lenders as a result of such issuance prepayment and (or series C) the Prepayment Premium represents liquidated damages and compensation for the costs of related issuances) is equal to or greater than $75,000,000making funds available hereunder.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Cross Country Healthcare Inc), Term Loan Credit Agreement (Cross Country Healthcare Inc)
Prepayment Premium. (a) Any Upon (i) voluntary payment, repayment, prepayment, satisfaction, replacement or refinancing (including in connection with any payment each mandatory prepayment of Second Lien Term Loans made pursuant to Section 2.205.02(a), (b), (d), or (e), (ii) mandatory any voluntary prepayment of Second Lien Term Loans pursuant to Sections 2.7(cSection 5.01 and/or (iii)(x) any payment of the Second Lien Term Loans resulting from any enforcement of remedies pursuant to Section 10.02 or (ey) (subject to the proviso below), (iii) other than with the consent of each directly affected Noteholder, (A) reduction to the amount or (B) extension of the due dates, in each case, of any principal of, or interest or premium on, any Note (whether in connection with any proceeding under Debtor Relief Laws or otherwise), or (iv) acceleration (including as a result of any Event of Default (including as a result of any proceeding under Debtor Relief Laws), whether automatically or by declaration, or by operation of law), in each case, in advance of the Maturity Date (including upon automatic acceleration of the NotesSecond Lien Term Loans pursuant to Section 10.02 (whether before or after the commencement of an Insolvency Proceeding) (each, a “Prepayment Premium Event”), the Borrower shall pay to the Administrative Agent, for the ratable account of the Notes, whether in whole or in part, shall be at a price equal Term Lenders according to (1) 100.0% of the principal amount their Pro Rata Share thereof, plus (2) accrued and unpaid interest as of the date of such repayment or prepayment or other event or occurrence, plus (3) the Prepayment Premium, if any, as of Premium applicable to the date of such repayment Second Lien Term Loans so prepaid or prepayment or other event or occurrence; provided that notwithstanding accelerated. Notwithstanding the foregoing, no Prepayment Premium shall be payable upon due in connection with a prepayment made with Declined Proceeds (Ias defined in the First Lien Credit Agreement) a mandatory prepayment under Sections 2.7(apursuant to Section 5.02(a), (b) ), (d), or (de).
(b) or (II)(x) a mandatory prepayment under Any Prepayment Premium payable in accordance with this Section 2.7(e) (whether or not such mandatory prepayment, or 4.04 shall be presumed to be equal to the event giving rise to such mandatory prepayment, is waived liquidated damages sustained by Lenders as the Required Noteholders) or (y) a voluntary prepayment in connection with the event giving rise to any mandatory prepayment under Section 2.7(e) that has been waived by the Required Noteholders if, but only if, in the case result of clauses (II)(x) and (II)(y), immediately prior to the occurrence of the event giving rise to such mandatory prepaymentPrepayment Premium Event and the Credit Parties agree that it is reasonable under the circumstances currently existing. THE CREDIT PARTIES EXPRESSLY WAIVE, the aggregate value of Holdings’ Capital Stock TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY ACCELERATION.
(based on the Most Recent Equity Price (as defined below)c) is equal to or exceeds $3,000,000,000. As used above, The Credit Parties expressly agree that: (i) “Most Recent Equity Price” means the implied valuation Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (ii) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (iii) there has been a course of conduct between the Lenders and the Credit Parties giving specific consideration in this transaction for Holdings’ Capital Stock on such agreement to pay the Prepayment Premium; (iv) the Credit Parties shall be estopped hereafter from claiming differently than as agreed to in this paragraph; (v) their agreement to pay the Prepayment Premium is a fully diluted basis arising from the applicable Equity Monetization Event or, in the event that the applicable Equity Monetization Event does not involve an investment which implies a value for Holdings’ Capital Stock, then the “Most Recent Equity Price” shall mean the price that Holdings’ preferred stock is sold to investors pursuant material inducement to the most recent Bona Fide Preferred Equity Offering (as defined below)Lenders to provide the Commitments and make the Second Lien Term Loans, and (iivi) “Bona Fide Preferred Equity Offering” means (A) initiallythe Prepayment Premium represents a good faith, reasonable estimate and calculation of the issuance lost profits or damages of the Administrative Agent and Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Administrative Agent and Lenders or profits lost by Holdings of its Series E Preferred Stock, the Administrative Agent and (B) thereafter, any issuance (or series of related issuances) by Holdings after the Closing Date of preferred stock so long as, in the case of this clause (B), the net cash proceeds Lenders as a result of such issuance (or series of related issuances) is equal to or greater than $75,000,000Prepayment Premium Event.
Appears in 2 contracts
Sources: Exchange Agreement (Evolent Health, Inc.), Second Lien Credit Agreement (Evolent Health, Inc.)
Prepayment Premium. (a) Any Upon (i) voluntary payment, repayment, prepayment, satisfaction, replacement or refinancing (including in connection with any payment each mandatory prepayment of Term Loans made pursuant to Section 2.205.02(a), (b), (d), or (e), (ii) mandatory any voluntary prepayment of Term Loans pursuant to Sections 2.7(c) or (e) (subject to the proviso below)Section 5.01, (iii) other than with the consent of each directly affected Noteholder, (A) reduction respect to the amount or (B) extension of the due dates, in each case, of any principal of, or interest or premium onRevolving Loans and Revolver Commitments, any Note (whether in connection with any proceeding under Debtor Relief Laws or otherwise)Repricing Transaction, or (iv) any voluntary reduction or termination of the Revolver Commitments and/or (v) any payment of the Loans and/or reduction or termination of commitments resulting from any enforcement of remedies pursuant to Section 10.02, including pursuant to acceleration thereunder (including as each, a result of any Event of Default (including as a result of any proceeding under Debtor Relief Laws), whether automatically or by declaration, or by operation of law“Prepayment Premium Event”), in each case, in advance case that occurs prior to the 36 month anniversary of the Maturity Date (including upon automatic acceleration Closing Date, each Borrower, jointly and severally, shall pay to the Administrative Agent, for the ratable account of the Notes)applicable Lenders according to their Pro Rata Share thereof, the Prepayment Premium applicable to the Term Loans so prepaid or repaid or Revolver Commitments so refinanced, reduced or terminated.
(b) Any Prepayment Premium payable in accordance with this Section 4.04 shall be presumed to be equal to the liquidated damages sustained by Lenders as the result of the Notes, whether in whole or in part, shall be at a price equal to (1) 100.0% occurrence of the principal amount thereofPrepayment Premium Event and the Credit Parties agree that it is reasonable under the circumstances currently existing. THE CREDIT PARTIES EXPRESSLY WAIVE, plus TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY ACCELERATION.
(2c) accrued and unpaid interest as of the date of such repayment or prepayment or other event or occurrence, plus The Credit Parties expressly agree that: (3i) the Prepayment PremiumPremium is reasonable and is the product of an arm’s length transaction between sophisticated business people, if any, as of ably represented by counsel; (ii) the date of such repayment or prepayment or other event or occurrence; provided that notwithstanding the foregoing, no Prepayment Premium shall be payable upon notwithstanding the then prevailing market rates at the time payment is made; (Iiii) a mandatory prepayment under Sections 2.7(a), (b) or (d) or (II)(x) a mandatory prepayment under Section 2.7(e) (whether or not such mandatory prepayment, or the event giving rise to such mandatory prepayment, is waived by the Required Noteholders) or (y) a voluntary prepayment in connection with the event giving rise to any mandatory prepayment under Section 2.7(e) that there has been waived by a course of conduct between the Required Noteholders if, but only if, Lenders and the Credit Parties giving specific consideration in this transaction for such agreement to pay the case of clauses Prepayment Premium; (II)(xiv) and the Credit Parties shall be estopped hereafter from claiming differently than as agreed to in this paragraph; (II)(y), immediately prior v) their agreement to pay the Prepayment Premium is a material inducement to the occurrence of Lenders to provide the event giving rise to such mandatory prepayment, Commitments and make the aggregate value of Holdings’ Capital Stock (based on the Most Recent Equity Price (as defined below)) is equal to or exceeds $3,000,000,000. As used above, (i) “Most Recent Equity Price” means the implied valuation for Holdings’ Capital Stock on a fully diluted basis arising from the applicable Equity Monetization Event or, in the event that the applicable Equity Monetization Event does not involve an investment which implies a value for Holdings’ Capital Stock, then the “Most Recent Equity Price” shall mean the price that Holdings’ preferred stock is sold to investors pursuant to the most recent Bona Fide Preferred Equity Offering (as defined below)Term Loans, and (iivi) “Bona Fide Preferred Equity Offering” means (A) initiallythe Prepayment Premium represents a good faith, reasonable estimate and calculation of the issuance lost profits or damages of the Agents and Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Agents and Lenders or profits lost by Holdings of its Series E Preferred Stock, the Agents and (B) thereafter, any issuance (or series of related issuances) by Holdings after the Closing Date of preferred stock so long as, in the case of this clause (B), the net cash proceeds ▇▇▇▇▇▇▇ as a result of such issuance (or series of related issuances) is equal to or greater than $75,000,000Prepayment Premium Event.
Appears in 1 contract
Prepayment Premium. (a) Any (i) voluntary payment, repayment, prepayment, satisfaction, replacement or refinancing (including in connection with any payment pursuant to Section 2.20), (ii) mandatory prepayment pursuant to Sections 2.7(c) or (e) (subject to the proviso below), (iii) other than with the consent The principal balance of each directly affected Noteholder, (A) reduction to the amount or (B) extension of the due dates, in each case, of any principal of, or interest or premium on, any Note (whether in connection with any proceeding under Debtor Relief Laws or otherwise), or (iv) acceleration (including as a result of any Event of Default (including as a result of any proceeding under Debtor Relief Laws), whether automatically or by declaration, or by operation of law), in each case, in advance of the Maturity Date (including upon automatic acceleration of the Notes), of the Notes, whether this Term Loan may be prepaid in whole or in partpart at any time provided that in each instance (a) Borrower shall give at least thirty (30) days prior written notice of such prepayment to Lender; (b) Borrower shall pay to Lender, shall be contemporaneously with such prepayment, only if such prepayment equals or exceeds five percent (5%) of the monthly payment amount of the Term Note at a price equal to the time of the prepayment (Borrower acknowledges that Borrower can make only one (1) 100.0% prepayment in any one (1) calendar year), a prepayment premium in an amount equal to five percent (5%) of the outstanding principal balance on the Term Loan, if prepaid during the first (1st) year of the Term Loan; Borrower shall pay to Lender, contemporaneously with such prepayment, a prepayment premium in an amount thereofequal to four percent (4%) of the outstanding principal balance on the Term Loan, plus if prepaid during the second (2nd) year of the Term Loan; Borrower shall pay to Lender, contemporaneously with such prepayment, a prepayment premium in an amount equal to three percent (3%) of the outstanding principal balance on the Term Loan, if prepaid during the third (3rd) year of the Term Loan; Borrower shall pay to Lender, contemporaneously with such prepayment, a prepayment premium in an amount equal to two percent (2%) accrued of the outstanding principal balance on the Term Loan, if prepaid during the fourth (4th) year of the Note; Borrower shall pay to Lender, contemporaneously with such prepayment a prepayment premium in an amount equal to one percent (1%) of the outstanding principal balance on the Term Loan, if prepaid during the fifth (5th) year of the Term Loan; and unpaid interest as (c) no prepayment penalty is due for the balance of the term of the Term Loan; provided, however, there shall be no prepayment penalty during the first five (5) years of the Term Loan in the event a prepayment equal to or in excess of five percent (5%) of the monthly payment is made from insurance proceeds paid in connection with a casualty loss. Borrower acknowledges that the prepayment premium described herein is consideration to Lender for the privilege of prepaying the indebtedness evidenced by the Term Note prior to maturity, and Borrower recognizes that Lender would incur substantial additional costs and expenses in the event of a prepayment of the indebtedness evidenced by the Term Note and that the prepayment premium is reasonable and compensates Lender for such costs and expenses (including without limitation, the loss of Lender’s investment opportunity during the period from the date of such repayment or prepayment or other event or occurrence, plus (3) until the Prepayment Premium, if anyMaturity Date). Borrower agrees that Lender shall not, as a condition to receiving the prepayment premium, be obligated to actually reinvest the amount prepaid in any manner whatsoever. Should Borrower elect to refinance the Term Loan, Lender shall have the first right of the date of such repayment or prepayment or other event or occurrence; provided that notwithstanding the foregoing, no Prepayment Premium shall be payable upon (I) a mandatory prepayment under Sections 2.7(a), (b) or (d) or (II)(x) a mandatory prepayment under Section 2.7(e) (whether or not such mandatory prepayment, or the event giving rise refusal to such mandatory prepayment, is waived by the Required Noteholders) or (y) a voluntary prepayment in connection with the event giving rise to match any mandatory prepayment under Section 2.7(e) that has been waived by the Required Noteholders if, but only if, in the case of clauses (II)(x) and (II)(y), immediately prior to the occurrence of the event giving rise to such mandatory prepayment, the aggregate value of Holdings’ Capital Stock (based on the Most Recent Equity Price (as defined below)) is equal to or exceeds $3,000,000,000refinancing proposals. As used above, (i) “Most Recent Equity Price” means the implied valuation for Holdings’ Capital Stock on a fully diluted basis arising from the applicable Equity Monetization Event or, in In the event that Lender elects to do so, Lender shall waive the applicable Equity Monetization Event does not involve an investment which implies a value for Holdings’ Capital Stock, then the “Most Recent Equity Price” shall mean the price that Holdings’ preferred stock is sold to investors pursuant to the most recent Bona Fide Preferred Equity Offering (as defined below), and (ii) “Bona Fide Preferred Equity Offering” means (A) initially, the issuance by Holdings of its Series E Preferred Stock, and (B) thereafter, any issuance (or series of related issuances) by Holdings after the Closing Date of preferred stock so long as, in the case of this clause (B), the net cash proceeds of such issuance (or series of related issuances) is equal to or greater than $75,000,000prepayment premium.
Appears in 1 contract
Sources: Term Loan Agreement (Cyanotech Corp)
Prepayment Premium. (a) Any (i) voluntary payment, repayment, prepayment, satisfaction, replacement or refinancing (including in connection with any payment pursuant to Section 2.20), (ii) mandatory prepayment pursuant to Sections 2.7(c) or (e) (subject to the proviso below), (iii) other than with the consent of each directly affected Noteholder, (A) reduction to the amount or Other than as set forth in clause (B) extension of the due dates, in each case, of any principal of, or interest or premium on, any Note (whether in connection with any proceeding under Debtor Relief Laws or otherwise), or (iv) acceleration (including as a result of any Event of Default (including as a result of any proceeding under Debtor Relief Laws), whether automatically or by declaration, or by operation of law), in each case, in advance of the Maturity Date (including upon automatic acceleration of the Notes), of the Notes, whether in whole or in part, shall be at a price equal to (1) 100.0% of the principal amount thereof, plus (2) accrued and unpaid interest as of the date of such repayment or prepayment or other event or occurrence, plus (3) the Prepayment Premium, if any, as of the date of such repayment or prepayment or other event or occurrence; provided that notwithstanding the foregoing, no Prepayment Premium shall be payable upon (I) a mandatory prepayment under Sections 2.7(a), (b) or (d) or (II)(x) a mandatory prepayment under Section 2.7(e) (whether or not such mandatory prepayment, or the event giving rise to such mandatory prepayment, is waived by the Required Noteholders) or (y) a voluntary prepayment in connection with the event giving rise to any mandatory prepayment under Section 2.7(e) that has been waived by the Required Noteholders if, but only if, in the case of clauses (II)(x) and (II)(y), immediately prior to the occurrence of the event giving rise to such mandatory prepayment, the aggregate value of Holdings’ Capital Stock (based on the Most Recent Equity Price (as defined below)) is equal to or exceeds $3,000,000,000. As used above, (i) “Most Recent Equity Price” means the implied valuation for Holdings’ Capital Stock on a fully diluted basis arising from the applicable Equity Monetization Event or, in the event that on or before the applicable Equity Monetization Event does not involve an investment which implies a value for Holdings’ Capital Stocktwelve (12) month anniversary of the Closing Date, then (x) all or any portion of the “Most Recent Equity Price” shall mean the price that Holdings’ preferred stock is sold to investors Loans are optionally prepaid pursuant to Section 2.12(a)(i) (other than optional prepayments of Loans funded using (i) solely free cash flow of the most recent Bona Fide Preferred Equity Offering (as defined below)Loan Parties, and (ii) “Bona Fide Preferred Equity Offering” means Net Invesque Sale Proceeds and/or (iii) net cash proceeds from sales of Capital Stock or assets of Loan Parties and their Subsidiaries other than Tiptree Insurance), (y) all or any portion of the Loans are mandatorily prepaid pursuant to Section 2.13(d) or (z) solely in connection with (A) initially, any amendment to this Agreement that reduces the issuance by Holdings of its Series E Preferred Stock, and interest rate on the Loans or (B) thereafterany amendment that modifies this Section 2.12(a)(iii)(A) in a manner that is adverse to Lenders, in each case which is not subject to clause (B) below, any issuance Non-Consenting Lender is replaced pursuant to a mandatory assignment in accordance with Section 2.22, then each Lender whose Loans are so prepaid or subject to such mandatory assignment shall be paid a fee equal to 1.00% of the aggregate principal amount of such Lender’s Loans so prepaid or subject to such mandatory assignment. For the avoidance of doubt, any optional prepayments of Loans funding using (i) solely free cash flow of the Loan Parties, (ii) Net Invesque Sale Proceeds and/or (iii) net cash proceeds from sales of Capital Stock or series assets of related issuancesLoan Parties and their Subsidiaries other than Tiptree Insurance shall not be subject to any prepayment premium pursuant to this clause (A).
(B) by Holdings after In the event that on or before the twenty-four (24) month anniversary of the Closing Date Date, (x) all or any portion of preferred stock so long asthe Loans are optionally prepaid pursuant to Section 2.12(a)(i), (y) all or any portion of the Loans are mandatorily prepaid pursuant to Section 2.13(a)(i) or (z) solely in connection with (A) any amendment entered into in connection with the sale of Capital Stock of Fortegra and/or Tiptree Warranty or (B) any amendment that modifies this Section 2.12(a)(iii)(B) in a manner that is adverse to Lenders, any Non-Consenting Lender is replaced pursuant to a mandatory assignment in accordance with Section 2.22, in the each case of this clause (B), using the net cash proceeds from either (i) the sale of Capital Stock of Fortegra and/or (ii) the sale of the Capital Stock or a material portion of the business of Tiptree Warranty, then each Lender whose Loans are so prepaid or subject to such mandatory assignment shall be paid a fee equal to 2.00% of the aggregate principal amount of such issuance Lender’s Loans so prepaid or subject to such mandatory assignment. The Borrower hereby acknowledges and agrees that, in light of the impracticality and extreme difficulty of ascertaining actual damages, the Prepayment Premium set forth above is intended to be a reasonable calculation of the actual damages that would be suffered by the Lenders as a result of any such prepayment, repayment or payment prior to the second anniversary of the Closing Date. The Borrower hereby further acknowledges and agrees that the Prepayment Premium is not intended to act as a penalty or to punish the Borrower for any such repayment, prepayment, payment or acceleration. The Borrower agrees that the Prepayment Premium is reasonable under the circumstances currently existing. THE BORROWER EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM (or series TO THE EXTENT APPLICABLE). The Borrower expressly agrees that (i) the Prepayment Premium is reasonable and is the product of related issuancesan arm’s length transaction 49 between sophisticated business people, ably represented by counsel, (ii) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is equal made, (iii) there has been a course of conduct between Lenders and the Borrower giving specific consideration in this transaction for such agreement to or greater pay the Prepayment Premium, (iv) the Borrower shall be estopped hereafter from claiming differently than $75,000,000as agreed to in this Section 2.12(a) and (v) the Borrower’s agreement to pay the Prepayment Premium is a material inducement to the Lenders to make the Loans hereunder and enter into this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Tiptree Inc.)
Prepayment Premium. (i) The Prepayment Premium, when due hereunder, to be shared between the Lenders in accordance with their respective Pro Rata Shares.
(ii) Subject to Section 2.7, Borrowers may elect to pay the Prepayment Premium in cash or, if the Forced Conversion Conditions are met, in cash or shares of Common Stock as contemplated by this Section 2.4(a)(ii). In connection with a conversion of any principal amount of the Term Loans, the value of a share of Common Stock issued to pay the Prepayment Premium in connection therewith shall be determined as set forth in and in accordance with the Secured Note. In connection with a mandatory or permitted prepayment in cash of any principal amount of Term Loans, including pursuant to Sections 2.2(c)(ii) or 2.2(d) hereof (a “Cash Prepayment”), if the Borrowers elect to pay the Prepayment Premium in connection therewith in shares of Common Stock pursuant to this Section 2.4(a)(ii), then (a) Any subject to the Forced Conversion Conditions, the Borrowers shall pay 50% of the Prepayment Premium on the date of the repayment in cash of the Term Loans (pursuant to Sections 2.2(c)(ii) or 2.2(d) or otherwise) with the value of a share of Common Stock to be issued with respect to such portion of the Prepayment Premium equal to 90% of the simple average of the Daily VWAP for the five (5) Trading Day ending on, and including, the Trading Day immediately preceding the earlier of the announcement of such Cash Prepayment and the date on which such portion of the Prepayment Premium is paid hereunder and (b) for so long as the Forced Conversion Conditions are met (i) voluntary paymentthe Borrowers shall pay the remaining 50% of the Prepayment Premium in five (5) equal installments (each a “Prepayment Premium PIK Installment”), repayment, prepayment, satisfaction, replacement or refinancing with each Prepayment Premium PIK Installment representing ten percent (including in connection with any payment pursuant to Section 2.20)10%) of the total dollar amount of the Prepayment Premium due and payable hereunder, (ii) mandatory prepayment pursuant to Sections 2.7(ca Prepayment Premium PIK Installment shall be paid on each of the five (5) or consecutive Trading Days beginning on the second Trading Day immediately following the date such Prepayment Premium becomes due and payable hereunder (e) (subject to the proviso beloweach a “Prepayment Premium PIK Installment Date”), (iii) other than the value of a share of Common Stock to be issued with respect to each Prepayment Premium PIK Installment shall be equal to 90% of the Daily VWAP for the one (1) Trading Day immediately preceding the applicable Prepayment Premium PIK Installment Date as set forth in a certificate of a Responsible Officer and delivered to each Lender, a separate certificate of which shall be delivered for each Prepayment Premium PIK Installment on the applicable Prepayment Premium PIK Installment Date and (iv) the Borrowers shall publicly announce, by way of a press release and/or a filing of a Form 8-K with the consent of each directly affected Noteholder, (A) reduction to the amount or (B) extension of the due dates, in each case, of any principal of, or interest or premium onSEC, any Note (whether election to pay the Prepayment Premium in shares of Common Stock in connection with any proceeding under Debtor Relief Laws a mandatory or permitted prepayment in cash of Term Loans (pursuant to Sections 2.2(c)(ii) or 2.2(d) hereof or otherwise), or (iv) acceleration (including as a result which such announcement shall disclose the dollar amount of any Event the Prepayment Premium to be paid, the dollar value of Default (including as a result each Prepayment Premium PIK Installment, the formula by which the number of any proceeding under Debtor Relief Lawsshares of Common Stock to be issued pursuant to each such Prepayment Premium PIK Installment shall be calculated and the Prepayment Premium PIK Installment Dates. In the event the Borrowers elect to pay the Prepayment Premium in Common Stock pursuant to this Section 2.4(a)(ii), whether automatically or by declaration, or by operation of law), in each case, in advance the Borrowers (i) shall segregate and deposit cash into a segregated account of the Maturity Date (including upon automatic acceleration Borrowers subject to a perfected security interest in favor of Collateral Agent pursuant to arrangements reasonably satisfactory to the Required Lenders an amount equal to the aggregate cash portion of the Notes), of Prepayment Premium payable on the Notes, whether Prepayment Premium PIK Installment Dates (the “Premium Account”) (and prior to the payment in whole full in cash or in part, shall be at a price equal to (1) 100.0% shares of the principal amount thereof, plus (2) accrued and unpaid interest as Common Stock of the date of such repayment or prepayment or other event or occurrence, plus (3) the Prepayment Premium, if any, as such cash shall not be used for purposes other than paying the cash portion of the date of Prepayment Premium on each such repayment or prepayment or other event or occurrencePrepayment Premium PIK Installment Date, if necessary; provided that notwithstanding security interest in the foregoingPremium Account and any cash therein shall be released upon the payment in full in cash or shares of Common Stock of the Prepayment Premium) and (ii) shall provide the Lenders at least two (2) Business Days (or such shorter period as acceptable to the Lenders) prior written notice of any election to pay the Prepayment Premium in shares of Common Stock pursuant to this Section 2.4(a)(ii) including identifying the applicable Premium Account. For the avoidance of doubt, to the extent any portion of the Prepayment Premium cannot be paid in shares of Common Stock by operation of Section 2.4 (including without limitation as the result of failure to satisfy the Forced Conversion Conditions at any time) or Section 2.7, such portion shall be paid in cash. Upon repayment in full pursuant to Section 2.2(d) of the aggregate principal amount of Term Loans outstanding and delivery of 50% of the Prepayment Premium in shares of Common Stock to Lenders pursuant to clause (a) above, as set forth in a certificate of a Responsible Officer and delivered to Collateral Agent and Lenders, Sections 6.2(c), 6.3, 6.5, 6.6, 6.7, 6.9, 6.12, 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.9, 7.10, 7.13 and 7.15 hereof shall have no further force or effect.
(iii) Borrowers expressly agree (to the fullest extent that each may lawfully do so) that: (A) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Prepayment Premium shall be payable upon notwithstanding the then prevailing market rates at the time payment is made; (IC) a mandatory prepayment under Sections 2.7(a), (b) or (d) or (II)(x) a mandatory prepayment under Section 2.7(e) (whether or not such mandatory prepayment, or the event giving rise to such mandatory prepayment, is waived by the Required Noteholders) or (y) a voluntary prepayment in connection with the event giving rise to any mandatory prepayment under Section 2.7(e) that there has been waived by a course of conduct between the Required Noteholders if, but only if, Lenders and Borrowers giving specific consideration in this transaction for such agreement to pay the case of clauses (II)(x) Prepayment Premium and (II)(y), immediately prior D) Borrowers shall be estopped hereafter from claiming differently than as agreed to in this paragraph. Borrowers expressly acknowledge that their agreement to pay the occurrence of Prepayment Premium to Lenders as herein described is a material inducement to Lenders to provide the event giving rise to such mandatory prepayment, Term Loan Commitments and make the aggregate value of Holdings’ Capital Stock (based on the Most Recent Equity Price (as defined below)) is equal to or exceeds $3,000,000,000. As used above, (i) “Most Recent Equity Price” means the implied valuation for Holdings’ Capital Stock on a fully diluted basis arising from the applicable Equity Monetization Event or, in the event that the applicable Equity Monetization Event does not involve an investment which implies a value for Holdings’ Capital Stock, then the “Most Recent Equity Price” shall mean the price that Holdings’ preferred stock is sold to investors pursuant to the most recent Bona Fide Preferred Equity Offering (as defined below), and (ii) “Bona Fide Preferred Equity Offering” means (A) initially, the issuance by Holdings of its Series E Preferred Stock, and (B) thereafter, any issuance (or series of related issuances) by Holdings after the Closing Date of preferred stock so long as, in the case of this clause (B), the net cash proceeds of such issuance (or series of related issuances) is equal to or greater than $75,000,000Term Loans.
Appears in 1 contract
Sources: Loan and Security Agreement (Senseonics Holdings, Inc.)
Prepayment Premium. (a) Any (i) voluntary payment, repayment, prepayment, satisfaction, replacement or refinancing (including in connection with any payment pursuant to Section 2.20), (ii) mandatory prepayment pursuant to Sections 2.7(c) or (e) (subject to the proviso below), (iii) other than with the consent The principal balance of each directly affected Noteholder, (A) reduction to the amount or (B) extension of the due dates, in each case, of any principal of, or interest or premium on, any this Term Note (whether in connection with any proceeding under Debtor Relief Laws or otherwise), or (iv) acceleration (including as a result of any Event of Default (including as a result of any proceeding under Debtor Relief Laws), whether automatically or by declaration, or by operation of law), in each case, in advance of the Maturity Date (including upon automatic acceleration of the Notes), of the Notes, whether may be prepaid in whole or in part, part at any time provided that in each instance (a) the Borrower shall be give at a price equal to least thirty (130) 100.0% of the principal amount thereof, plus (2) accrued and unpaid interest as of the date days prior written notice of such repayment or prepayment or other event or occurrence, plus (3) the Prepayment Premium, if any, as of the date of such repayment or prepayment or other event or occurrenceto Lender; provided that notwithstanding the foregoing, no Prepayment Premium shall be payable upon (I) a mandatory prepayment under Sections 2.7(a), (b) the Borrower shall pay to the Lender, contemporaneously with such prepayment, a prepayment premium in an amount equal to seven percent (7%) of the outstanding principal balance of the Term Loan, if prepaid during the first year of the Term Loan; the Borrower shall pay to the Lender, contemporaneously with such -56- prepayment, a prepayment premium in an amount equal to six percent (6%) of the outstanding principal balance of the Term Loan, if prepaid during the second year of the Term Loan; the Borrower shall pay to the Lender, contemporaneously with such prepayment, a prepayment premium in an amount equal to five percent (5%) of the outstanding principal balance of the Term Loan, if prepaid during the third year of the Term Loan; the Borrower shall pay to the Lender, contemporaneously with such prepayment, a prepayment premium in an amount equal to four percent (4%) of the outstanding principal balance of the Term Loan, if prepaid during the fourth year of the Term Loan; the Borrower shall pay to the Lender, contemporaneously with such prepayment a prepayment premium in an amount equal to three percent (3%) of the outstanding principal balance of the Term Loan, if prepaid during the fifth year of the Term Loan; the Borrower shall pay to the Lender, contemporaneously with such prepayment a prepayment premium in an amount equal to two percent (2%) of the outstanding principal balance of the Term Loan, if prepaid during the sixth year of the Term Loan; the Borrower shall pay to the Lender, contemporaneously with such prepayment a prepayment premium in an amount equal to one percent (1%) of the outstanding principal balance of the Term Loan, if prepaid during the seventh year of the Term Loan; and (c) no prepayment premium is due for the balance of the term of the Term Loan. In the event the business is sold as a going concern or if same is acquired, the prepayment penalty shall be as follows: three percent (3%) of the outstanding principal balance of the Term Loan, if prepaid during the first year of the Term Loan; two percent (2%) of the outstanding principal balance of the Term Loan, if prepaid during the second year of the Term Loan; one percent (1%) of the outstanding principal balance of the Term Loan, if prepaid during the third, fourth, fifth, sixth or seventh year of the Term Loan.
(a) the per share book value at the time of the USDA RD Loan closing, or (db) the per share book value at the time of sale or (II)(x) a mandatory prepayment under Section 2.7(e) (whether or not such mandatory prepayment, or the event giving rise to such mandatory prepayment, is waived by the Required Noteholders) or (y) a voluntary prepayment in connection with the event giving rise to any mandatory prepayment under Section 2.7(e) that has been waived by the Required Noteholders if, but only if, in the case of clauses (II)(x) and (II)(y), immediately prior to the occurrence acquisition of the event giving rise business. Should the Borrower elect to such mandatory prepaymentrefinance this loan, Lender shall have the aggregate value first right of Holdings’ Capital Stock (based on the Most Recent Equity Price (as defined below)) is equal refusal to or exceeds $3,000,000,000match any refinancing proposals. As used above, (i) “Most Recent Equity Price” means the implied valuation for Holdings’ Capital Stock on a fully diluted basis arising from the applicable Equity Monetization Event or, in In the event that Lender elects to do so, Lender will waive the applicable Equity Monetization Event does not involve an investment which implies a value for Holdings’ Capital Stock, then the “Most Recent Equity Price” shall mean the price that Holdings’ preferred stock is sold to investors pursuant to the most recent Bona Fide Preferred Equity Offering (prepayment premium as defined below), and (ii) “Bona Fide Preferred Equity Offering” means (A) initially, the issuance by Holdings of its Series E Preferred Stock, and (B) thereafter, any issuance (or series of related issuances) by Holdings after the Closing Date of preferred stock so long as, in the case of this clause (B), the net cash proceeds of such issuance (or series of related issuances) is equal to or greater than $75,000,000applicable.
Appears in 1 contract
Sources: Term Loan Agreement (Cyanotech Corp)
Prepayment Premium. Any prepayment of Advances pursuant to Sections 2.06(a) (a) Any (i) voluntary payment, repayment, prepayment, satisfaction, replacement or refinancing (including in connection with any payment other than prepayments resulting from Excess Cash Flow pursuant to Section 2.202.06(b)(i), (ii) mandatory prepayment pursuant to Sections 2.7(c) or (e) (subject to the proviso below), (iii) other than with the consent of each directly affected Noteholder, (A) reduction to the amount or (B) extension of the due dates, in each case, of any principal of, or interest or premium on, any Note (whether in connection with any proceeding under Debtor Relief Laws or otherwise), or (iv) acceleration (including as a result of any Event of Default (including as a result of any proceeding under Debtor Relief Laws), whether automatically or by declaration, or by operation of law), in each case, in advance of the Maturity Date (including upon automatic acceleration of the Notes), of the Notes, whether in whole or in part, shall be at accompanied by a price premium such that the aggregate amount of such prepayment shall equal to (1) 100.0105% of the principal amount thereofprepaid; provided, plus (2) accrued and unpaid interest as of the date of such repayment or prepayment or other event or occurrence, plus (3) the Prepayment Premium, if any, as of the date of such repayment or prepayment or other event or occurrence; provided that notwithstanding the foregoing, no Prepayment Premium shall be payable upon (I) a mandatory prepayment under Sections 2.7(a), (b) or (d) or (II)(x) a mandatory prepayment under Section 2.7(e) (whether or not such mandatory prepayment, or the event giving rise to such mandatory prepayment, is waived by the Required Noteholders) or (y) a voluntary prepayment in connection with the event giving rise to any mandatory prepayment under Section 2.7(e) that has been waived by the Required Noteholders if, but only if, in the case of clauses (II)(x) and (II)(y), immediately prior to the occurrence of the event giving rise to such mandatory prepayment, the aggregate value of Holdings’ Capital Stock (based on the Most Recent Equity Price (as defined below)) is equal to or exceeds $3,000,000,000. As used abovehowever, (i) “Most Recent Equity Price” means the implied valuation for Holdings’ Capital Stock on a fully diluted basis arising if such prepayment is made from the applicable Equity Monetization Event or, in date of the event that the applicable Equity Monetization Event does not involve an investment which implies a value for Holdings’ Capital Stock, then the “Most Recent Equity Price” shall mean the price that Holdings’ preferred stock is sold to investors pursuant Fourth Amendment Effective Date to the most recent Bona Fide Preferred Equity Offering (as defined below)date of the first anniversary of the Fourth Amendment Effective Date, such prepayment shall automatically be reduced to 101% of the principal amount prepaid, and (ii) if such prepayment is made at any time after the date of the first anniversary of the Fourth Amendment Effective Date, there shall be no reduction and such prepayment shall equal 105% of the principal amount prepaid.”
(g) Section 2.07(a) of the Credit Agreement (“Bona Fide Preferred Equity Offering” means Interest”) is hereby amended by adding the following text at the end of such section: “provided however, that, in connection with any Interest Payment Date occurring after the Fourth Amendment Effective Date, a portion of the interest owing on such Interest Payment Date shall be deferred as follows: (Ai) initiallyfor Eurodollar Rate Advances, 2.00% of the aggregate Applicable Margin for Eurodollar Rate Advances shall be deferred or (b) for Base Rate Advances, 2.00% of the aggregate Applicable Margin for Base Rate Advances shall be deferred (in either case, the issuance by Holdings of its Series E Preferred Stock, “Deferred Interest Amount”) and (Bii) thereafter, any issuance the aggregate principal amount of the Loans shall be deemed to be automatically increased by an amount equal to the Deferred Interest Amount owing on such Interest Payment Date.”
(or series h) Section 5.03(e) of related issuancesthe Credit Agreement (“Annual Forecasts”) is hereby amended by Holdings after the Closing Date of preferred stock so long asdeleting such subsection in its entirety and substituting, in the case of this clause (B)lieu thereof, the net cash proceeds of such issuance following new subsection (or series of related issuances) is equal to or greater than $75,000,000.e):
Appears in 1 contract
Sources: Second Lien Senior Secured Credit Agreement (Triple Crown Media, Inc.)
Prepayment Premium. (a) Any In the event that, on or prior to the third anniversary of the Closing Date, the Borrower prepays pursuant to Section 5.6.1 [Right to Prepay] or prepays or refinances any Initial Term B Loans pursuant to Section 5.7.3 [Issuance of Debt], the Borrower shall pay to the TLB Administrative Agent, for the ratable account of each of the Term B Lenders holding Initial Term B Loans, (i) voluntary paymentthe Make-Whole Premium on the aggregate principal amount of the Initial Term B Loans so prepaid or refinanced on or prior to the first anniversary of the Closing Date, repayment(ii) a premium of 2.00% of the aggregate principal amount of the Initial Term B Loans so prepaid or refinanced after the first anniversary of the Closing Date, prepaymentbut on or prior to the second anniversary of the Closing Date and (iii) a premium of 1.00% of the aggregate principal amount of the Initial Term B Loans so prepaid or refinanced after the second anniversary of the Closing Date, satisfactionbut on or prior to the third anniversary of the Closing Date. The amounts paid pursuant to the preceding sentence are referred to herein as the “Applicable Prepayment Premium.” All such amounts shall be due and payable on the date of the relevant prepayment pursuant to Section 5.6.1 [Right to Prepay] or Section 5.7.3 [Issuance of Debt]. For the avoidance of doubt, replacement or refinancing (including no prepayment premium shall be payable hereunder in connection with any payment prepayment or refinancing of Initial Term B Loans after the third anniversary of the Closing Date. For the avoidance of doubt, for purposes of this Section 5.6.4, any purchase of an Initial Term B Loan pursuant to Section 2.20)5.07 of the Intercreditor Agreement shall, (ii) mandatory for purposes of this Section 5.6.4, be deemed to be a prepayment of such Initial Term B Loan pursuant to Sections 2.7(c) or (e) (subject to Section 5.6.1 hereof made at the proviso below), (iii) other than with the consent of each directly affected Noteholder, (A) reduction to the amount or (B) extension of the due dates, in each case, of any principal of, or interest or premium on, any Note (whether in connection with any proceeding under Debtor Relief Laws or otherwise), or (iv) acceleration (including as a result of any Event of Default (including as a result of any proceeding under Debtor Relief Laws), whether automatically or by declaration, or by operation of law), in each case, in advance of the Maturity Date (including upon automatic acceleration of the Notes), of the Notes, whether in whole or in part, shall be at a price equal to (1) 100.0% of the principal amount thereof, plus (2) accrued and unpaid interest as of the date time of such repayment or prepayment or other event or occurrence, plus (3) the Prepayment Premium, if any, as of the date of such repayment or prepayment or other event or occurrence; provided that notwithstanding the foregoing, no Prepayment Premium shall be payable upon (I) a mandatory prepayment under Sections 2.7(a), (b) or (d) or (II)(x) a mandatory prepayment under Section 2.7(e) (whether or not such mandatory prepayment, or the event giving rise to such mandatory prepayment, is waived by the Required Noteholders) or (y) a voluntary prepayment in connection with the event giving rise to any mandatory prepayment under Section 2.7(e) that has been waived by the Required Noteholders if, but only if, in the case of clauses (II)(x) and (II)(y), immediately prior to the occurrence of the event giving rise to such mandatory prepayment, the aggregate value of Holdings’ Capital Stock (based on the Most Recent Equity Price (as defined below)) is equal to or exceeds $3,000,000,000. As used above, (i) “Most Recent Equity Price” means the implied valuation for Holdings’ Capital Stock on a fully diluted basis arising from the applicable Equity Monetization Event or, in the event that the applicable Equity Monetization Event does not involve an investment which implies a value for Holdings’ Capital Stock, then the “Most Recent Equity Price” shall mean the price that Holdings’ preferred stock is sold to investors pursuant to the most recent Bona Fide Preferred Equity Offering (as defined below), and (ii) “Bona Fide Preferred Equity Offering” means (A) initially, the issuance by Holdings of its Series E Preferred Stock, and (B) thereafter, any issuance (or series of related issuances) by Holdings after the Closing Date of preferred stock so long as, in the case of this clause (B), the net cash proceeds of such issuance (or series of related issuances) is equal to or greater than $75,000,000purchase.
Appears in 1 contract
Prepayment Premium. (a) Any (i) voluntary payment, repayment, prepayment, satisfaction, replacement If Borrower pays in full all or refinancing (including in connection with any payment pursuant to Section 2.20), (ii) mandatory prepayment pursuant to Sections 2.7(c) or (e) (subject substantially all of the Liabilities prior to the proviso below)end of the initial term of this Agreement, (iii) other than with temporarily from funds internally generated in the consent ordinary course of each directly affected Noteholder, (A) reduction to the amount business or (B) extension through an infusion of the due dates, in each case, of any principal capital of, or interest into, iParty Corp. (provided this Agreement is not terminated as a consequence of such payment or premium on, any Note (whether in connection with any proceeding under Debtor Relief Laws infusion or otherwise), or (iv) acceleration (including as a result of any Event of Default (including as a result of any proceeding under Debtor Relief Laws), whether automatically or by declaration, or by operation of law), in each case, in advance of at the Maturity Date (including upon automatic acceleration of the Notes), of the Notes, whether in whole or in part, shall be at a price equal to (1) 100.0% of the principal amount thereof, plus (2) accrued and unpaid interest as of the date time of such repayment or prepayment or other event or occurrence, plus (3) the payment Borrower shall also pay to Lender a “Prepayment Premium, if any, as of the date of such repayment or prepayment or other event or occurrence; provided that notwithstanding the foregoing, no Prepayment Premium shall be payable upon (I) a mandatory prepayment under Sections 2.7(a), (b) or (d) or (II)(x) a mandatory prepayment under Section 2.7(e) (whether or not such mandatory prepayment, or the event giving rise to such mandatory prepayment, is waived by the Required Noteholders) or (y) a voluntary prepayment ” in connection with the event giving rise to any mandatory prepayment under Section 2.7(e) that has been waived by the Required Noteholders if, but only if, in the case of clauses (II)(x) and (II)(y), immediately prior to the occurrence of the event giving rise to such mandatory prepayment, the aggregate value of Holdings’ Capital Stock (based on the Most Recent Equity Price (as defined below)) is an amount equal to or exceeds $3,000,000,000. As used above, to: (i) “Most Recent Equity Price” means one and one half (1.50%) percent of the implied valuation for Holdings’ Capital Stock on a fully diluted basis arising from the applicable Equity Monetization Event Credit Limit or, in if applicable, the event that the applicable Equity Monetization Event does not involve an investment which implies a value for Holdings’ Capital StockAdjusted Credit Limit, then the “Most Recent Equity Price” shall mean the price that Holdings’ preferred stock is sold to investors pursuant to the most recent Bona Fide Preferred Equity Offering (as defined below)if paid on or before January 2, 2005, and (ii) “Bona Fide Preferred Equity Offering” means one (A1.0%) initiallypercent of the of the Credit Limit or, if applicable, the issuance Adjusted Credit Limit, if paid after January 2, 2005 and on or before January 2, 2006; and (ii) one half of one (0.50%) percent of the of the Credit Limit or, if applicable, the Adjusted Credit Limit, if paid after January 2, 2006 and before the Maturity Date. Any payment of the Liabilities following an acceleration by Holdings Lender of the Liabilities pursuant to Article 10 hereof, shall be for purposes of this section deemed to be a prepayment requiring Borrower to pay the aforementioned Prepayment Premium. Such Prepayment Premium shall be paid to Lender as additional consideration, and in view of the impracticality and extreme difficulty of ascertaining the actual amount of damages to the Lender or profits lost by the Lender as a result of such early termination and by mutual agreement of the parties as to a reasonable estimation and calculation of the Lender’s lost profits or damages, as liquidated damages for the loss of the bargain by Lender and not as a penalty.”
(t) Exhibits 5-2 (Related Entities), 5-3 (Trade Names), 5-4 (Locations), 5-5 (Encumbrances and Liens), 5-6 (Indebtedness), 5-7 (Insurance Policies), 5-9 (Leases), 5-12 (Taxes), 7-1 (Demand Deposit Accounts), 7-2 (Credit Card Arrangements), 9-4 (Borrowing Base Certificate), 9-R (Reporting), 9-10 (Business Plan) and 9-11 (Covenants) to the Loan Agreement are hereby stricken in their entirety and the following new Exhibits 5-2, 5-3, 5-4, 5-5, 5-6, 5-7, 5-9, 5-12, 7-1, 7-2, 9-4, 9-R, 9-10 and 9-11 attached hereto substituted therefor.
4. This Amendment shall be effective upon receipt by the Lender of an executed original hereof, together with each of the following:
(a) The replacement note substantially in the form of Exhibit A hereto, duly executed on behalf of the Borrowers (the “Replacement Note”);
(b) A closing fee in the amount of Twenty-Two Thousand Five Hundred ($22,500) Dollars;
(c) Payment in full of Lender’s reasonable costs and expenses incurred in connection herewith including reasonable attorney’s fees and expenses not to exceed Fifteen Thousand ($15,000) Dollars.
5. In addition to the forgoing, Borrowers shall pay a one-time fee of Three Thousand ($3,000) Dollars plus reasonable out of pocket expenses in connection with the establishment of electronic reporting systems.
6. Except as explicitly amended by this Amendment, all of the terms and conditions of the Loan Agreement shall remain in full force and effect and shall apply to any advance or letter of credit thereunder.
7. Each of the Borrowers hereby represents and warrants to the Lender as follows:
(a) Each of the Borrowers has all requisite power and authority to execute this Amendment and to perform all of its Series E Preferred Stockobligations hereunder, and this Amendment has been duly executed and delivered by the Borrowers and constitutes the legal, valid and binding obligations of the Borrowers, enforceable in accordance with its terms.
(Bb) thereafterThe execution, delivery and performance by the Borrowers of this Amendment have been duly authorized by all necessary action and do not (i) require any issuance authorization, consent or approval by any governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (ii) violate any provision of any law, rule or series regulation or of related issuancesany order, writ, injunction or decree presently in effect, having applicability to any of the Borrowers, or the articles of incorporation or by-laws of the Borrowers, or (iii) result in a breach of or constitute a default under any indenture or loan or credit agreement or any other agreement, lease or instrument to which any of the Borrowers is a party or by Holdings after which any of them or their properties may be bound or affected.
(c) Except as set forth on “Schedule 7(c)” hereto, all of the Closing Date representations and warranties contained in Article V of preferred stock so long as, the Loan Agreement are correct on and as of the date hereof as though made on and as of such date.
8. All references in the case Loan Agreement to “this Agreement” shall be deemed to refer to the Loan Agreement as amended hereby. Any and all references in the Security Documents to the Loan Agreement shall be deemed to refer to the Loan Agreement as amended hereby.
9. The execution of this clause (B)Amendment and acceptance of any documents related hereto shall not be deemed to be a waiver of any default or Event of Default under the Loan Agreement or breach, default or event of default under any Security Document or other document held by the Lender, whether or not known to the Lender and whether or not existing on the date of this Amendment.
10. The Borrowers hereby absolutely and unconditionally release and forever discharge the Lender, and any and all participants, parent corporations, subsidiary corporations, affiliated corporations, insurers, indemnitors, successors and assigns thereof, together with all of the present and former directors, officers, agents and employees of any of the foregoing, from any and all claims, demands or causes of action of any kind, nature or description, whether arising in law or equity or upon contract or tort or under any state or federal law or otherwise, and related to the Loan Agreement or Security Documents which the Borrowers have had, now have or have made claim to have against any such person for or by reason of any act, omission, matter, cause or thing whatsoever arising from the beginning of time to and including the date of this Amendment, whether such claims, demands and causes of action are matured or unmatured or known or unknown.
11. The Borrower hereby reaffirms its agreement under the Loan Agreement to pay or reimburse the Lender on demand for all costs and expenses incurred by the Lender in connection with the Loan Agreement, the net cash Security Documents and all other documents contemplated thereby, including without limitation all reasonable fees and disbursements of legal counsel. Without limiting the generality of the foregoing, the Borrower specifically agrees to pay all fees and disbursements of counsel to the Lender in an amount not to exceed Fifteen Thousand ($15,000) Dollars for the services performed by such counsel in connection with the preparation of this Amendment and the documents and instruments incidental hereto. The Borrower hereby agrees that the Lender may, at any time or from time to time in its sole discretion and without further authorization by the Borrowers, make a loan to the Borrowers under the Loan Agreement, or apply the proceeds of any loan, for the purpose of paying any such issuance fees, disbursements, costs and expenses.
12. This Amendment has been prepared through the joint efforts of all the parties. Neither its provisions nor any alleged ambiguity shall be interpreted or resolved against any party on the ground that such party’s counsel was the draftsman of this Amendment. Each of the parties declares that such party has carefully read this Amendment and the agreements, documents and instruments being entered into in connection herewith and that such party knows the contents thereof and signs the same freely and voluntarily. The parties hereto acknowledge that they have been represented in negotiations for and preparation of this Amendment and the agreements, documents and instrument being entered into in connection herewith by legal counsel of their own choosing, and that each of them has read the same and had their contents fully explained by such counsel and is fully aware of their contents and legal effect.
13. The Lender and the Borrowers further agree that this Amendment and the Loan Agreement and all documents which have been or may be hereinafter furnished by the Borrower to the Lender may be reproduced by the Lender by any photographic, photostatic, microfilm, xerographic or similar process, and any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or series not the original is in existence and whether or not such reproduction was made in the regular course of related issuances) is equal business).
14. This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to or greater than $75,000,000.be an original, and all of which, when taken together, shall constitute but one and the same Agreement. Delivery of an executed counterpart of this Amendment by facsimile shall be equally as effective as delivery of an original executed counterpart of this Amendment. Any party delivering an executed counterpart of this Amendment by facsimile also shall deliver an original executed counterpart of this Amendment but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Amendment. The foregoing shall apply to each other Loan Document hereof mutatis mutandis. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the day and year first above written. BORROWER By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, CEO BORROWER By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, CEO
Appears in 1 contract
Prepayment Premium. (i) The Prepayment Premium, when due hereunder, to be shared between the Purchasers in accordance with their respective Pro Rata Shares.
(ii) Subject to Section 2.7, Issuer may elect to pay the Prepayment Premium in cash or, if the Forced Conversion Conditions are met, in cash or shares of Common Stock as contemplated by this Section 2.4(a)(ii). In connection with a conversion of any principal amount of the Notes, the value of a share of Common Stock issued to pay the Prepayment Premium in connection therewith shall be determined as set forth in and in accordance with the Note. In connection with a mandatory or permitted prepayment in cash of any principal amount of Notes, including pursuant to Sections 2.2(c)(ii) or 2.2(d) hereof (a “Cash Prepayment”), if Issuer elects to pay the Prepayment Premium in connection therewith in shares of Common Stock pursuant to this Section 2.4(a)(ii), then (a) Any subject to the Forced Conversion Conditions, Issuer shall pay 50% of the Prepayment Premium on the date of the repayment in cash of the Notes (pursuant to Sections 2.2(c)(ii) or 2.2(d) or otherwise) with the value of a share of Common Stock to be issued with respect to such portion of the Prepayment Premium equal to 90% of the simple average of the Daily VWAP for the five (5) Trading Day ending on, and including, the Trading Day immediately preceding the earlier of the announcement of such Cash Prepayment and the date on which such portion of the Prepayment Premium is paid hereunder and (b) for so long as the Forced Conversion Conditions are met (i) voluntary paymentthe Issuer shall pay the remaining 50% of the Prepayment Premium in five (5) equal installments (each a “Prepayment Premium PIK Installment”), repayment, prepayment, satisfaction, replacement or refinancing with each Prepayment Premium PIK Installment representing ten percent (including in connection with any payment pursuant to Section 2.20)10%) of the total dollar amount of the Prepayment Premium due and payable hereunder, (ii) mandatory prepayment pursuant to Sections 2.7(ca Prepayment Premium PIK Installment shall be paid on each of the five (5) or consecutive Trading Days beginning on the second Trading Day immediately following the date such Prepayment Premium becomes due and payable hereunder (e) (subject to the proviso beloweach a “Prepayment Premium PIK Installment Date”), (iii) other than the value of a share of Common Stock to be issued with respect to each Prepayment Premium PIK Installment shall be equal to 90% of the Daily VWAP for the one (1) Trading Day immediately preceding the applicable Prepayment Premium PIK Installment Date as set forth in a certificate of a Responsible Officer and delivered to the Purchasers, a separate certificate of which shall be delivered for each Prepayment Premium PIK Installment on the applicable Prepayment Premium PIK Installment Date and (iv) Issuer shall publicly announce, by way of a press release and/or a filing of a Form 8-K with the consent of each directly affected Noteholder, (A) reduction to the amount or (B) extension of the due dates, in each case, of any principal of, or interest or premium onSEC, any Note (whether election to pay the Prepayment Premium in shares of Common Stock in connection with any proceeding under Debtor Relief Laws a mandatory or permitted prepayment in cash of Notes (pursuant to Sections 2.2(c)(ii) or 2.2(d) hereof or otherwise), which such announcement shall disclose the dollar amount of the Prepayment Premium to be paid, the dollar value of each Prepayment Premium PIK Installment, the formula by which the number of shares of Common Stock to be issued pursuant to each such Prepayment Premium PIK Installment shall be calculated and the Prepayment Premium PIK Installment Dates. In the event Issuer elects to pay the Prepayment Premium in Common Stock pursuant to this Section 2.4(a)(ii), Issuer (i) shall segregate and deposit cash into a segregated account of the Issuer subject to a perfected security interest in favor of Collateral Agent pursuant to arrangements reasonably satisfactory to the Required Purchasers in an amount equal to the aggregate cash portion of the Prepayment Premium payable on the Prepayment Premium PIK Installment Dates (the “Premium Account”) (and prior to the payment in full in cash or in shares of Common Stock of the Prepayment Premium such cash shall not be used for purposes other than paying the cash portion of the Prepayment Premium on each such Prepayment Premium PIK Installment Date, if necessary; provided that security interest in the Premium Account and any cash therein shall be released upon the payment in full in cash or shares of Common Stock of the Prepayment Premium) and (ivii) acceleration shall provide the Purchasers at least two (including 2) Business Days (or such shorter period as a result acceptable to the Purchasers) prior written notice of any Event election to pay the Prepayment Premium in shares of Default (Common Stock pursuant to this Section 2.4(a)(ii) including as a result identifying the applicable Premium Account. For the avoidance of doubt, to the extent any proceeding under Debtor Relief Laws), whether automatically or by declaration, or portion of the Prepayment Premium cannot be paid in shares of Common Stock by operation of law)Section 2.4 (including without limitation as the result of failure to satisfy the Forced Conversion Conditions at any time) or Section 2.7, such portion shall be paid in each case, cash. Upon repayment in advance full pursuant to Section 2.2(d) of the Maturity Date (including upon automatic acceleration aggregate principal amount of the Notes), Notes outstanding and delivery of the Notes, whether in whole or in part, shall be at a price equal to (1) 100.050% of the principal amount thereofPrepayment Premium in shares of Common Stock to Purchasers pursuant to clause (a) above, plus as set forth in a certificate of a Responsible Officer and delivered to Collateral Agent and the Purchasers, Sections 6.2(c), 6.3, 6.5, 6.6, 6.7, 6.9, 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.9, 7.10, 7.13 and 7.15 hereof shall have no further force or effect.
(2iii) accrued and unpaid interest as of Issuer expressly agrees (to the date of such repayment or prepayment or other event or occurrence, plus fullest extent that each may lawfully do so) that: (3A) the Prepayment PremiumPremium is reasonable and is the product of an arm’s length transaction between sophisticated business people, if any, as of ably represented by counsel; (B) the date of such repayment or prepayment or other event or occurrence; provided that notwithstanding the foregoing, no Prepayment Premium shall be payable upon notwithstanding the then prevailing market rates at the time payment is made; (IC) a mandatory prepayment under Sections 2.7(a), (b) or (d) or (II)(x) a mandatory prepayment under Section 2.7(e) (whether or not such mandatory prepayment, or the event giving rise to such mandatory prepayment, is waived by the Required Noteholders) or (y) a voluntary prepayment in connection with the event giving rise to any mandatory prepayment under Section 2.7(e) that there has been waived by a course of conduct between the Required Noteholders if, but only if, Purchasers and Issuer giving specific consideration in this transaction for such agreement to pay the case of clauses (II)(x) Prepayment Premium and (II)(y), immediately prior D) Issuer shall be estopped hereafter from claiming differently than as agreed to in this paragraph. Issuer expressly acknowledges that its agreement to pay the Prepayment Premium to Purchasers as herein described is a material inducement to Purchasers to agree to the occurrence of the event giving rise to such mandatory prepayment, the aggregate value of Holdings’ Capital Stock (based on the Most Recent Equity Price (as defined below)) is equal to or exceeds $3,000,000,000. As used above, (i) “Most Recent Equity Price” means the implied valuation for Holdings’ Capital Stock on a fully diluted basis arising from the applicable Equity Monetization Event or, in the event that the applicable Equity Monetization Event does not involve an investment which implies a value for Holdings’ Capital Stock, then the “Most Recent Equity Price” shall mean the price that Holdings’ preferred stock is sold to investors pursuant to the most recent Bona Fide Preferred Equity Offering (as defined below), and (ii) “Bona Fide Preferred Equity Offering” means (A) initially, the issuance by Holdings of its Series E Preferred Stock, and (B) thereafter, any issuance (or series of related issuances) by Holdings after the Closing Date of preferred stock so long as, in the case of this clause (B), the net cash proceeds of such issuance (or series of related issuances) is equal to or greater than $75,000,000Exchange.
Appears in 1 contract
Sources: Note Purchase and Exchange Agreement (Senseonics Holdings, Inc.)
Prepayment Premium. (a) Any Upon (i) voluntary payment, repayment, prepayment, satisfaction, replacement or refinancing (including in connection with any payment each mandatory prepayment of Term Loans made pursuant to Section 2.205.02(a), (b), (d), or (e), (ii) mandatory any voluntary prepayment of Term Loans pursuant to Sections 2.7(c) or (e) (subject to the proviso below)Section 5.01, (iii) other than with the consent of each directly affected Noteholder, (A) any voluntary reduction to the amount or (B) extension of the due dates, termination in each case, of any principal of, or interest or premium on, any Note (whether in connection with any proceeding under Debtor Relief Laws or otherwise), or Revolver Commitments and/or (iv) any payment of the Loans and/or reduction or termination of commitments resulting from any enforcement of remedies pursuant to Section 10.02, including pursuant to acceleration thereunder (including as each, a result of any Event of Default (including as a result of any proceeding under Debtor Relief Laws“Prepayment Premium Event”), whether automatically or by declarationeach Borrower, or by operation of law)jointly and severally, in each caseshall pay to the Administrative Agent, in advance for the ratable account of the Maturity Date Lenders according to their Pro Rata Share thereof, the Prepayment Premium applicable to the Term Loans so prepaid (including upon automatic acceleration or Revolver Commitments so reduced or terminated). Notwithstanding the foregoing, the Prepayment Premium shall not be required to be paid with respect to (x) Revolver Commitment reductions of up to $10,000,000 in the aggregate during the term of this Agreement and (y) optional and mandatory prepayments of the Notes), of the Notes, whether Term Loans in whole or in part, shall be at a price equal to (1) 100.0% of the an aggregate principal amount thereof, plus during the term of this Agreement that is less than the lesser of (2x) accrued $58,300,000 and unpaid interest (y) the Available Amount calculated as of the date of any such repayment or prepayment or other event or occurrenceprepayment, plus with details of such calculation delivered to the Administrative Agent as certified by an Authorized Officer of the Administrative Borrower.
(3b) Any Prepayment Premium payable in accordance with this Section 4.04 shall be presumed to be equal to the liquidated damages sustained by Lenders as the result of the occurrence of the Prepayment Premium Event and the Credit Parties agree that it is reasonable under the circumstances currently existing. THE CREDIT PARTIES EXPRESSLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY ACCELERATION.
(c) The Credit Parties expressly agree that: (i) the Prepayment PremiumPremium is reasonable and is the product of an arm’s length transaction between sophisticated business people, if any, as of ably represented by counsel; (ii) the date of such repayment or prepayment or other event or occurrence; provided that notwithstanding the foregoing, no Prepayment Premium shall be payable upon notwithstanding the then prevailing market rates at the time payment is made; (Iiii) a mandatory prepayment under Sections 2.7(a), (b) or (d) or (II)(x) a mandatory prepayment under Section 2.7(e) (whether or not such mandatory prepayment, or the event giving rise to such mandatory prepayment, is waived by the Required Noteholders) or (y) a voluntary prepayment in connection with the event giving rise to any mandatory prepayment under Section 2.7(e) that there has been waived by a course of conduct between the Required Noteholders if, but only if, Lenders and the Credit Parties giving specific consideration in this transaction for such agreement to pay the case of clauses Prepayment Premium; (II)(xiv) and the Credit Parties shall be estopped hereafter from claiming differently than as agreed to in this paragraph; (II)(y), immediately prior v) their agreement to pay the Prepayment Premium is a material inducement to the occurrence of Lenders to provide the event giving rise to such mandatory prepayment, Commitments and make the aggregate value of Holdings’ Capital Stock (based on the Most Recent Equity Price (as defined below)) is equal to or exceeds $3,000,000,000. As used above, (i) “Most Recent Equity Price” means the implied valuation for Holdings’ Capital Stock on a fully diluted basis arising from the applicable Equity Monetization Event or, in the event that the applicable Equity Monetization Event does not involve an investment which implies a value for Holdings’ Capital Stock, then the “Most Recent Equity Price” shall mean the price that Holdings’ preferred stock is sold to investors pursuant to the most recent Bona Fide Preferred Equity Offering (as defined below)Term Loans, and (iivi) “Bona Fide Preferred Equity Offering” means (A) initiallythe Prepayment Premium represents a good faith, reasonable estimate and calculation of the issuance lost profits or damages of the Agents and Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Agents and Lenders or profits lost by Holdings of its Series E Preferred Stock, the Agents and (B) thereafter, any issuance (or series of related issuances) by Holdings after the Closing Date of preferred stock so long as, in the case of this clause (B), the net cash proceeds ▇▇▇▇▇▇▇ as a result of such issuance (or series of related issuances) is equal to or greater than $75,000,000Prepayment Premium Event.
Appears in 1 contract
Prepayment Premium. (a) Any If, in each case on or before the Prepayment Premium Date:
(i) voluntary payment, repayment, prepayment, satisfaction, replacement the whole or refinancing (including in connection with any payment part of any outstanding Prepayment Premium Loan becomes immediately due and payable pursuant to Section 2.20Clause 9.2 (Change of control) or Clause 9.3 (Flotation or Sale), ; and/or
(ii) mandatory prepayment a Borrower voluntarily gives the Agent notice, pursuant to Sections 2.7(cClause 9.11 (Voluntary prepayment of Term Facility Loans), that it wishes to prepay the whole or any part of a Prepayment Premium Loan, the provisions of paragraph (b) or below will apply provided that they will not apply to any voluntary prepayment of a Prepayment Premium Loan made in accordance with paragraph (ed) of Clause 9.11 (subject Voluntary Prepayment of Term Facility Loans) to the proviso below), extent such prepayments are made prior to 90 days after the date hereof.
(iiib) other than with If all or any part of a Prepayment Premium Loan becomes due and payable in the consent of each directly affected Noteholder, circumstances set out in paragraph (Aa) reduction above:
(i) an amount equal to the Prepayment Premium applicable to the amount or of such Prepayment Premium Loan (B) extension of excluding any amount which the due dates, in each case, of any principal of, or interest or premium on, any Note (whether in connection with any proceeding under Debtor Relief Laws or otherwise), or (iv) acceleration (including Obligor’s Agent certifies is prepaid as a result of any Event the provisions of Default paragraph (including as a result a)(ii) above out of any proceeding the amount of Net Disposal Proceeds or Insurance Proceeds or Acquisition Recovery Proceeds which were not required to be used in mandatory prepayment under Debtor Relief LawsClauses 9.5 (Asset Disposals), whether automatically 9.6 (Insurance Proceeds) or by declaration, or by operation of law), in each case, in advance of 9.7 (Acquisition Recovery Proceeds) respectively) which becomes due and payable (the Maturity Date (including upon automatic acceleration of the Notes), of the Notes, whether in whole or in part, shall be at a price equal to (1) 100.0% of the principal amount thereof, plus (2) accrued and unpaid interest as of the date of such repayment or prepayment or other event or occurrence, plus (3) the “Applicable Prepayment Premium, if any, as of ”) will become immediately due and payable by the date of Borrower owing such repayment or prepayment or other event or occurrence; provided that notwithstanding the foregoing, no a Prepayment Premium Loan;
(ii) each Applicable Prepayment Premium shall be payable upon (I) a mandatory prepayment under Sections 2.7(a), (b) or (d) or (II)(x) a mandatory prepayment under Section 2.7(e) (whether or not such mandatory prepayment, or the event giving rise to such mandatory prepayment, is waived by the Required Noteholders) or (y) a voluntary prepayment in connection with the event giving rise to any mandatory prepayment under Section 2.7(e) that has been waived by the Required Noteholders if, but only if, in the case of clauses (II)(x) and (II)(y), immediately prior paid to the occurrence of Agent at the event giving rise same time as the Prepayment Premium Loan (or any part thereof) to such mandatory prepayment, the aggregate value of Holdings’ Capital Stock (based on the Most Recent Equity Price (as defined below)) which it relates is equal to or exceeds $3,000,000,000. As used above, (i) “Most Recent Equity Price” means the implied valuation for Holdings’ Capital Stock on a fully diluted basis arising from the applicable Equity Monetization Event or, in the event that the applicable Equity Monetization Event does not involve an investment which implies a value for Holdings’ Capital Stock, then the “Most Recent Equity Price” shall mean the price that Holdings’ preferred stock is sold to investors pursuant repaid to the most recent Bona Fide Preferred Equity Offering Agent; and
(as defined below), and (iiiii) “Bona Fide Preferred Equity Offering” means (A) initially, the issuance by Holdings of its Series E Preferred Stock, and (B) thereafter, any issuance (or series of related issuances) by Holdings after Agent shall distribute each Applicable Prepayment Premium between the Closing Date of preferred stock so long as, Lenders rateably according to their participations in the case of this clause (B), the net cash proceeds of such issuance (or series of related issuances) is equal each Loan to or greater than $75,000,000which that Applicable Prepayment Premium relates.
Appears in 1 contract
Sources: Senior Facilities Agreement (Messer Griesheim Holding Ag)
Prepayment Premium. (a) Any Upon (i) voluntary payment, repayment, prepayment, satisfaction, replacement or refinancing (including in connection with any payment each mandatory prepayment of Term Loans made pursuant to Section 2.205.02(a), (b), (d), or (e), (ii) mandatory any voluntary prepayment of Term Loans pursuant to Sections 2.7(c) or (e) (subject to the proviso below)Section 5.01, (iii) other than with the consent of each directly affected Noteholder, (A) any voluntary reduction to the amount or (B) extension of the due dates, termination in each case, of any principal of, or interest or premium on, any Note (whether in connection with any proceeding under Debtor Relief Laws or otherwise), or Revolving Commitments and/or (iv) any payment of the Loans and/or reduction or termination of commitments resulting from any enforcement of remedies pursuant to Section 10.02, including pursuant to acceleration thereunder (including as each, a result of any Event of Default (including as a result of any proceeding under Debtor Relief Laws“Prepayment Premium Event”), whether automatically or by declarationeach Borrower, or by operation of law)jointly and severally, in each caseshall pay to the Administrative Agent, in advance for the ratable account of the Maturity Date Lenders according to their Pro Rata Share thereof, the Prepayment Premium applicable to the Term Loans so prepaid (including upon automatic acceleration or Revolving Commitments so reduced or terminated). Notwithstanding the foregoing, the Prepayment Premium shall not be required to be paid with respect to (x) Revolver Commitment reductions of up to $10,000,000 in the aggregate during the term of this Agreement and (y) optional and mandatory prepayments of the Notes), of the Notes, whether Term Loans in whole or in part, shall be at a price equal to (1) 100.0% of the an aggregate principal amount thereof, plus during the term of this Agreement that is less than the lesser of (2x) accrued $58,300,000 and unpaid interest (y) the Available Amount calculated as of the date of any such repayment or prepayment or other event or occurrenceprepayment, plus with details of such calculation delivered to the Administrative Agent as certified by an Authorized Officer of the Administrative Borrower.
(3b) Any Prepayment Premium payable in accordance with this Section 4.04 shall be presumed to be equal to the liquidated damages sustained by Lenders as the result of the occurrence of the Prepayment Premium Event and the Credit Parties agree that it is reasonable under the circumstances currently existing. THE CREDIT PARTIES EXPRESSLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY ACCELERATION.
(c) The Credit Parties expressly agree that: (i) the Prepayment PremiumPremium is reasonable and is the product of an arm’s length transaction between sophisticated business people, if any, as of ably represented by counsel; (ii) the date of such repayment or prepayment or other event or occurrence; provided that notwithstanding the foregoing, no Prepayment Premium shall be payable upon notwithstanding the then prevailing market rates at the time payment is made; (Iiii) a mandatory prepayment under Sections 2.7(a), (b) or (d) or (II)(x) a mandatory prepayment under Section 2.7(e) (whether or not such mandatory prepayment, or the event giving rise to such mandatory prepayment, is waived by the Required Noteholders) or (y) a voluntary prepayment in connection with the event giving rise to any mandatory prepayment under Section 2.7(e) that there has been waived by a course of conduct between the Required Noteholders if, but only if, Lenders and the Credit Parties giving specific consideration in this transaction for such agreement to pay the case of clauses Prepayment Premium; (II)(xiv) and the Credit Parties shall be estopped hereafter from claiming differently than as agreed to in this paragraph; (II)(y), immediately prior v) their agreement to pay the Prepayment Premium is a material inducement to the occurrence of Lenders to provide the event giving rise to such mandatory prepayment, Commitments and make the aggregate value of Holdings’ Capital Stock (based on the Most Recent Equity Price (as defined below)) is equal to or exceeds $3,000,000,000. As used above, (i) “Most Recent Equity Price” means the implied valuation for Holdings’ Capital Stock on a fully diluted basis arising from the applicable Equity Monetization Event or, in the event that the applicable Equity Monetization Event does not involve an investment which implies a value for Holdings’ Capital Stock, then the “Most Recent Equity Price” shall mean the price that Holdings’ preferred stock is sold to investors pursuant to the most recent Bona Fide Preferred Equity Offering (as defined below)Term Loans, and (iivi) “Bona Fide Preferred Equity Offering” means (A) initiallythe Prepayment Premium represents a good faith, reasonable estimate and calculation of the issuance lost profits or damages of the Agents and Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Agents and Lenders or profits lost by Holdings of its Series E Preferred Stock, the Agents and (B) thereafter, any issuance (or series of related issuances) by Holdings after the Closing Date of preferred stock so long as, in the case of this clause (B), the net cash proceeds ▇▇▇▇▇▇▇ as a result of such issuance (or series of related issuances) is equal to or greater than $75,000,000Prepayment Premium Event.
Appears in 1 contract
Prepayment Premium. Borrower shall pay the applicable Prepayment Premium in In connection with (a1) Any any voluntary prepayments of Term Loans made pursuant to this Section 2.12 or mandatory prepayments of Term Loans required to be made pursuant to Section 2.13(d) or (i2) voluntary paymentany Repricing Transaction (it being understood that in ), repayment, prepayment, satisfaction, replacement or refinancing in each case prior to the six month anniversary of the event that Borrower (including x) makes any prepayment of Term Loans in connection with any payment pursuant to Section 2.20), Repricing Transaction,Fifth Amendment Effective Date (ii) mandatory prepayment pursuant to Sections 2.7(c) whether before or (ey) (subject to the proviso below), (iii) other than with the consent effects any amendment of each directly affected Noteholder, (A) reduction to the amount or (B) extension of the due dates, this Agreement resulting in each case, of any principal of, or interest or premium on, any Note (whether in connection with any proceeding under Debtor Relief Laws or otherwise), or (iv) acceleration (including as a result of any Event of Default (including as a result of any proceeding under Debtor Relief Laws), whether automatically or by declaration, or by operation of law), in each case, in advance of the Maturity Date (including upon automatic Repricing Transaction,after acceleration of the NotesObligations or the commencement of any bankruptcy or insolvency proceeding), Borrower shall pay to the Administrative Agent, for the account of each of the Notesapplicable Term Lenders, whether (I) in whole or in part, shall be at the case of clause (x),a premium (expressed as a price equal to (1) 100.0% Prepayment Premiumpercentage of the principal amount thereof, plus (2of such Term Loans to be prepaid) accrued and unpaid interest as equal to 1.00% with respect to the amount of the date Term Loans being so prepaid and (II) in the case of such repayment or prepayment or other event or occurrenceclause (y), plus (3) a payment equal to the Prepayment Premium, if any, as Premium with respect to the aggregate amount of the date of applicable Term Loans outstanding immediately prior to such repayment or prepayment or other event or occurrenceamendment) and held by Lenders who did not consent to such amendment (such Lenders, “Non-Participating Lenders”) for distribution on a pro rata basis to such Non-Participating Lenders; provided provided, that notwithstanding the foregoing, no Prepayment Premium shall be payable upon (I) a mandatory prepayment under Sections 2.7(a), (b) or (d) or (II)(x) a mandatory prepayment under Section 2.7(e) (whether or not such mandatory prepayment, or the event giving rise to such mandatory prepayment, is waived by the Required Noteholders) or (y) a voluntary prepayment in connection with the event giving rise to any mandatory prepayment under Section 2.7(e) Repricing Transaction that has been waived by the Required Noteholders if, but only if, in the case of clauses (II)(x) and (II)(y), immediately prior to the occurrence occurs within six months of the event giving rise to such mandatory prepayment, the aggregate value of Holdings’ Capital Stock (based on the Most Recent Equity Price (as defined below)) is equal to or exceeds $3,000,000,000. As used above, (i) “Most Recent Equity Price” means the implied valuation for Holdings’ Capital Stock on a fully diluted basis arising date that Borrower receives notice from the applicable Equity Monetization Event or, in the event Administrative Agent that the applicable Equity Monetization Event does not involve an investment which implies a value for Holdings’ Capital Stock, then Loans shall bear interest at the “Most Recent Equity Price” shall mean the price that Holdings’ preferred stock is sold to investors pursuant to the most recent Bona Fide Preferred Equity Offering (as defined below), and (ii) “Bona Fide Preferred Equity Offering” means (A) initially, the issuance by Holdings of its Series E Preferred Stock, and (B) thereafter, any issuance (or series of related issuances) by Holdings after the Closing Date of preferred stock so long as, in the case of this clause (B), the net cash proceeds of such issuance (or series of related issuances) is equal to or greater than $75,000,000Alternative Rate.
Appears in 1 contract
Sources: Credit Agreement (Tiptree Inc.)