Mandatory and Voluntary Prepayments. (a) The Borrower may, upon not less than three Business Days' and not more than five Business Days' prior written notice to the Lenders (which notice shall be irrevocable), at any time and from time to time, prepay the Loans in whole or in part, provided, however, that (i) each partial prepayment pursuant to this Section 2.02(a) shall be in an aggregate principal amount of at least $500,000 and, if greater, in integral multiples of $500,000, and (ii) no such prepayment shall be made unless (x) there is no Senior Indebtedness outstanding under the Credit Agreement and all commitments under the Credit Agreement have been terminated or (y) the Credit Agreement expressly permits such payments or the Bank has, in writing, consented to such payment. In connection with any voluntary prepayment, the Borrower shall prepay the Loan at the prepayment price set forth below (plus all accrued interest): % of Principal Prepayment Date During the Period Being Paid From the Funding Date to 105% but not including the first anniversary of the Funding Date From the first anniversary of the Funding 104% Date to but not including the second anniversary of the Funding Date From the second anniversary of the Funding 103% Date to but not including the third anniversary of the Funding Date From the third anniversary of the Funding 102% Date to but not including the fourth anniversary of the Funding Date From the fourth anniversary of the Funding 101% Date and at any time thereafter ; provided that on or prior to January 29, 2002, the Borrower may, at its option, prepay up to 33% of the initial aggregate principal amount of the Loans at a prepayment price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the date of prepayment solely with the net proceeds of a Qualified Public Equity Offering, with any additional prepayments of Loans with the net proceeds of such Qualified Public Equity Offering to be made at the relevant prepayment price as otherwise set forth in the table above. (b) Notwithstanding the foregoing or the provisions of Section 2.02(d) below, the Lenders and the Borrower agree and acknowledge that the Credit Agreement prohibits any payments that would otherwise be made to the Lenders under Section 2.02(a) or (d) and, as a result thereof, no payment shall be made to the Lenders under Section 2.02(a) or (d) unless and only to the extent the Credit Agreement is amended or modified to provide that such amounts may be paid to the Lenders. (c) All prepayments (whether voluntary or mandatory) shall include payment of accrued interest on the principal amount of the Loans so prepaid and shall be applied to payment of accrued interest before application to principal. Any payment of the Loans as a result of an Event of Default (or the acceleration of the Loans resulting therefrom) and all mandatory prepayments (including, without limitation, payments pursuant to Section 2.02(d)) shall be deemed a voluntary prepayment for the purposes of this Section 2 and shall be paid at the payment price specified in Section 2.02 (a) as if such payment had been voluntary; provided that (x) any payment of Loans made as a result of an Event of Default arising under Section 7.03(a)(i) as a consequence of a default in the performance of any covenant contained in Section 6.07, 6.08 or 6.09 or the acceleration of the Loans resulting therefrom shall be paid at a prepayment price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the date of such prepayment and (y) any payment of Loans made pursuant to Section 2.02(e) shall be paid at the prepayment price specified in said Section. Except in the event a given Lender waives any right to payment of the Loans resulting from an Event of Default or declines to demand payment pursuant to Section 2.02(d) (or waives, in part, repayment of a portion of its outstanding Loans to which it is otherwise entitled as a result of an Event of Default or demands repayment of its outstanding Loans in a lesser principal amount than it is otherwise entitled to pursuant to Section 2.02(d)), all prepayments which are applied to principal will be applied on a pro rata basis to all Loans. (d) Upon the occurrence of a Change in Control or an Asset Sale, the Borrower shall, upon demand of any Lender, repay in full in cash, on the Business Day following any such demand, the unpaid outstanding principal amount of the Loan made by such Lender at the prepayment price specified in Section 2.02(a) and all other amounts (including accrued and unpaid interest) owing hereunder and the other Loan Documents to such Lender. (e) In addition to any other mandatory repayments required pursuant to this Section 2.02, on each date after the Effective Date upon which the Borrower or any of its Subsidiaries receives any proceeds from any key-man life insurance, the Borrower shall prepay an aggregate principal amount of the Loans at a prepayment price equal to 101% in an amount equal to 50% of the amount of proceeds received from such key-man life insurance; provided that in the event that 50% of the proceeds of such key-man life insurance are paid directly to one or more Lenders (or any other financial institution that ceases to be a Lender hereunder upon assignment of all of its outstanding Loans pursuant to Section 10.04) as beneficiaries thereunder, such payment shall be deemed to be a prepayment by the Borrower of the Loans as provided above in this Section
Appears in 1 contract
Samples: Senior Subordinated Loan Agreement (Consolidated Delivery & Logistics Inc)
Mandatory and Voluntary Prepayments. (a) The Borrower may, upon not less than three Business Days' and not more than five Business Days' prior written notice Notwithstanding anything to the Lenders (which notice shall be irrevocable), at any time and from time contrary set forth in this Agreement but subject to time, prepay the Loans in whole or in part, provided, however, that (i) each partial prepayment pursuant to this Section 2.02(a) shall be in an aggregate principal amount of at least $500,000 and, if greater, in integral multiples of $500,000, and (ii) no such prepayment shall be made unless (x) there is no Senior Indebtedness outstanding under the Credit Agreement and all commitments under the Credit Agreement have been terminated or (y) the Credit Agreement expressly permits such payments or the Bank has, in writing, consented to such payment. In connection with any voluntary prepayment4.1, the Borrower shall prepay may pay to IESA, and IESA may accept, for application to the Loan at the prepayment price set forth below (plus all accrued interest): % of Principal Prepayment Date During the Period Being Paid From the Funding Date IESA Second-Lien Obligations, mandatory prepayments pursuant to 105% but not including the first anniversary Section 2.05 of the Funding Date From IESA Credit Agreement equal to the first anniversary amount by which the Borrower’s cash receipts (excluding proceeds of Loans under and as defined in the IESA Credit Agreement) exceeded the Borrower’s cash disbursements during the most recently ended four-week period, as determined with reference to the applicable Certified Variance Report (as defined in the BlueBay Credit Agreement), it being understood that nothing in the Agreement shall be construed to require the Borrower to make mandatory prepayments of excess cash pursuant to Section 2.11(g) of the Funding 104% Date to but not including BlueBay Credit Agreement until the second anniversary of the Funding Date From the second anniversary of the Funding 103% Date to but not including the third anniversary of the Funding Date From the third anniversary of the Funding 102% Date to but not including the fourth anniversary of the Funding Date From the fourth anniversary of the Funding 101% Date and at any time thereafter ; provided that on or prior to January 29, 2002, the Borrower may, at its option, prepay up to 33% of the initial aggregate principal amount of the Loans at a prepayment price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the date of prepayment solely with the net proceeds of a Qualified Public Equity Offering, with any additional prepayments of Loans with the net proceeds of such Qualified Public Equity Offering to be made at the relevant prepayment price as otherwise set forth in the table aboveIESA Second-Lien Obligations have been repaid.
(b) Notwithstanding All other amounts which the foregoing Borrower is permitted or required to pay to the Agent or IESA for application to the BlueBay Obligations or the provisions of Section 2.02(d) belowIESA Pari Passu Obligations, as the case may be, under the terms of, respectively, the Lenders BlueBay Credit Agreement and the Borrower agree and acknowledge that the IESA Credit Agreement prohibits any payments that would otherwise Agreement, shall be made payable to the Lenders under Section 2.02(a) or (d) and, as a result thereof, no payment shall be made to the Lenders under Section 2.02(a) or (d) unless Agent and only to the extent the Credit Agreement is amended or modified to provide that such amounts may be paid to the Lenders.
(c) All prepayments (whether voluntary or mandatory) shall include payment of accrued interest on the principal amount of the Loans so prepaid and shall be applied to payment of accrued interest before application to principal. Any payment of the Loans as a result of an Event of Default (or the acceleration of the Loans resulting therefrom) and all mandatory prepayments IESA (including, without limitationfor avoidance of doubt, payments pursuant in its capacity as holder of the IESA Pari Passu Obligations) for application to the BlueBay Obligations and the IESA Pari Passu Obligations, in accordance with their Pro Rata Shares. For the avoidance of doubt, IESA, on account of the IESA Second-Lien Obligations, shall not be entitled to mandatory prepayments except as set forth in Section 2.02(d4.2(a)) shall be deemed a voluntary prepayment for the purposes of this Section 2 , and shall not be paid at entitled to any voluntary prepayments, in each case, until the payment price specified in Section 2.02
(a) as if such payment had been voluntary; provided that (x) any payment of Loans made as a result of an Event of Default arising under Section 7.03(a)(i) as a consequence of a default in the performance of any covenant contained in Section 6.07, 6.08 or 6.09 or the acceleration Discharge of the Loans resulting therefrom shall be paid at a prepayment price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the date of such prepayment and (y) any payment of Loans made pursuant to Section 2.02(e) shall be paid at the prepayment price specified in said Section. Except in the event a given Lender waives any right to payment of the Loans resulting from an Event of Default or declines to demand payment pursuant to Section 2.02(d) (or waives, in part, repayment of a portion of its outstanding Loans to which it is otherwise entitled as a result of an Event of Default or demands repayment of its outstanding Loans in a lesser principal amount than it is otherwise entitled to pursuant to Section 2.02(d)), all prepayments which are applied to principal will be applied on a pro rata basis to all LoansBlueBay Obligations.
(d) Upon the occurrence of a Change in Control or an Asset Sale, the Borrower shall, upon demand of any Lender, repay in full in cash, on the Business Day following any such demand, the unpaid outstanding principal amount of the Loan made by such Lender at the prepayment price specified in Section 2.02(a) and all other amounts (including accrued and unpaid interest) owing hereunder and the other Loan Documents to such Lender.
(e) In addition to any other mandatory repayments required pursuant to this Section 2.02, on each date after the Effective Date upon which the Borrower or any of its Subsidiaries receives any proceeds from any key-man life insurance, the Borrower shall prepay an aggregate principal amount of the Loans at a prepayment price equal to 101% in an amount equal to 50% of the amount of proceeds received from such key-man life insurance; provided that in the event that 50% of the proceeds of such key-man life insurance are paid directly to one or more Lenders (or any other financial institution that ceases to be a Lender hereunder upon assignment of all of its outstanding Loans pursuant to Section 10.04) as beneficiaries thereunder, such payment shall be deemed to be a prepayment by the Borrower of the Loans as provided above in this Section
Appears in 1 contract
Samples: Intercreditor Agreement (Atari Inc)
Mandatory and Voluntary Prepayments. (a1) The Borrower may, upon not less than three Business Days' Credit B (and not more than five Business Days' prior written notice to the Lenders (which notice shall be irrevocable), at any time and from time to time, prepay the Loans in whole or in part, provided, however, that (i) each partial prepayment pursuant to this Section 2.02(aAdvances outstanding thereunder) shall be in an aggregate principal permanently repaid by the amount of at least $500,000 and, if greater, in integral multiples of $500,000, and (ii) no such prepayment shall be made unless (x) there is no Senior Indebtedness outstanding under the Credit Agreement and all commitments under the Credit Agreement have been terminated or (y) the Credit Agreement expressly permits such payments or the Bank has, in writing, consented to such payment. In connection with any voluntary prepayment, the Borrower shall prepay the Loan at the prepayment price set forth below (plus all accrued interest): % of Principal Prepayment Date During the Period Being Paid From the Funding Date to 105% but not including the first anniversary of the Funding Date From the first anniversary of the Funding 104% Date to but not including the second anniversary of the Funding Date From the second anniversary of the Funding 103% Date to but not including the third anniversary of the Funding Date From the third anniversary of the Funding 102% Date to but not including the fourth anniversary of the Funding Date From the fourth anniversary of the Funding 101% Date and at any time thereafter ; provided that on or prior to January 29, 2002, the Borrower may, at its option, prepay up to 33% of the initial aggregate principal amount of the Loans at a prepayment price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the date of prepayment solely with the net proceeds of a Qualified Public Equity Offering, with any additional prepayments of Loans with the net proceeds of such Qualified Public Equity Offering to be made at the relevant prepayment price as otherwise set forth in the table above.
(b) Notwithstanding the foregoing or the provisions of Section 2.02(d) below, the Lenders and the Borrower agree and acknowledge that the Credit Agreement prohibits any payments that would otherwise be made to the Lenders under Section 2.02(a) or (d) and, as a result thereof, no payment shall be made to the Lenders under Section 2.02(a) or (d) unless and only to the extent the Credit Agreement is amended or modified to provide that such amounts may be paid to the Lenders.
(c) All prepayments (whether voluntary or mandatory) shall include payment of accrued interest on the principal amount of the Loans so prepaid and shall be applied to payment of accrued interest before application to principal. Any payment of the Loans as a result of an Event of Default (or the acceleration of the Loans resulting therefrom) and all mandatory prepayments (including, without limitation, payments pursuant to Section 2.02(d)) shall be deemed a voluntary prepayment for the purposes of this Section 2 and shall be paid at the payment price specified in Section 2.02of:
(a) as if such payment had been voluntary; provided that (x) any payment of Loans made as a result of an Event of Default arising under Section 7.03(a)(i) as a consequence of a default in the performance of any covenant contained in Section 6.07, 6.08 or 6.09 or the acceleration of the Loans resulting therefrom shall be paid at a prepayment price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the date of such prepayment and (y) any payment of Loans made pursuant to Section 2.02(e) shall be paid at the prepayment price specified in said Section. Except in the event a given Lender waives any right to payment of the Loans resulting from an Event of Default or declines to demand payment pursuant to Section 2.02(d) (or waives, in part, repayment of a portion of its outstanding Loans to which it is otherwise entitled as a result of an Event of Default or demands repayment of its outstanding Loans in a lesser principal amount than it is otherwise entitled to pursuant to Section 2.02(d)), all prepayments which are applied to principal will be applied on a pro rata basis to all Loans.
(d) Upon the occurrence of a Change in Control or an Asset Sale, the Borrower shall, upon demand of any Lender, repay in full in cash, on the Business Day following any such demand, the unpaid outstanding principal amount of the Loan made by such Lender at the prepayment price specified in Section 2.02(a) and all other amounts (including accrued and unpaid interest) owing hereunder and the other Loan Documents to such Lender.
(e) In addition to any other mandatory repayments required pursuant to this Section 2.02, on each date after the Effective Date upon which the Borrower or any of its Subsidiaries receives any proceeds from any key-man life insurance, the Borrower shall prepay an aggregate principal amount of the Loans at a prepayment price equal to 101% in an amount equal to 50100% of the amount of proceeds received from all Net Cash Proceeds of any issuance of Permitted Pari Passu Debt and Permitted Subordinated Debt to the extent that any such keyNet Cash Proceeds have not been used to make a Permitted Investment (which, for these purposes, shall not include any guarantee or other financial assistance or Investments in Cash Equivalents) within 18 months after receipt of such proceeds; and
(b) 100% of the amount of all Net Cash Proceeds in excess of Cdn. $20,000,000 in any fiscal year of the Borrower of any sale, transfer or other disposition by any Obligor of any of its Property (including Capital Stock of other Persons), other than Net Cash Proceeds of (i) sales, transfers or dispositions between or among the Borrower and its wholly-man life insurance; provided that owned Subsidiaries, or (ii) sales, transfers or dispositions, the Net Cash Proceeds of which are used to make a Permitted Investment (which, for these purposes, shall not include any guarantee or other financial assistance or Investments in Cash Equivalents) within 18 months after receipt of such proceeds.
(2) The Borrower shall reduce to nil the amount of Advances outstanding under Credit A utilized to fund Distributions for one Business Day (each, a “Clean-Down Period”) at least once in every 12-month period, and shall notify the Agent in writing of the dates of each such reduction. The Borrower shall not be entitled to an Advance under Credit A to fund Distributions in the event that 50% the foregoing clean-down requirement has not been met.
(3) The Borrower may prepay Prime Rate Advances and Base Rate Advances under the Credits upon prior written notice given in accordance with Section 5.3 and, subject to Section 5.4, may prepay LIBOR Advances under the Credits upon three Business Days prior written notice, without premium or penalty in minimum amounts of Cdn. $5,000,000 and integral multiples of Cdn. $1,000,000, in the proceeds case of such key-man life insurance are Prime Rate Advances and in minimum amounts of US $5,000,000 and integral multiples of US $1,000,000, in the case of Base Rate Advances or LIBOR Advances, and except that no Banker’s Acceptance or BA Equivalent Loan may be paid directly prior to one or more Lenders (or its maturity date and any other financial institution that ceases to be a Lender hereunder upon assignment prepayments of Advances shall include payment of all of its breakage costs. The Borrower may cash collateralize outstanding Loans pursuant to Section 10.04) as beneficiaries thereunder, such payment shall be deemed to be a prepayment by the Borrower of the Loans as provided above in this SectionBanker’s Acceptances and BA Equivalent Loans.
Appears in 1 contract
Mandatory and Voluntary Prepayments. (a) The Borrower may, upon not less than three Business Days' and not more than five Business Days' prior written notice to the Lenders (which notice shall be irrevocable), at any time and from time to time, prepay the Loans in whole or in part, provided, however, that (i) each partial prepayment pursuant to this Section 2.02(a) shall be in an aggregate principal amount of at least $500,000 100,000 and, if greater, in integral multiples of $500,000, and (ii) no such prepayment shall be made unless (x) there is no Senior Indebtedness outstanding under the Credit Agreement and all commitments under the Credit Agreement have been terminated or (y) the Credit Agreement expressly permits such payments or the Bank has, in writing, consented to such payment100,000. In connection with any voluntary prepayment, the Borrower shall prepay the Loan at the prepayment price set forth below (plus all accrued interest): % of Principal Prepayment Date During the Period Being Paid --------------------------------- ---------- From the Funding Date to 105103% but not including the first anniversary of the Funding Date From the first anniversary of the Funding 104102% Date to but not including the second anniversary of the Funding Date From the second anniversary of the Funding 103101% Date to but not including the third anniversary of the Funding Date From the third anniversary of the Funding 102% Date to but not including the fourth anniversary of the Funding Date From the fourth anniversary of the Funding 101100% Date and at any time thereafter ; provided that on or prior to January 29, 2002, the Borrower may, at its option, prepay up to 33% of the initial aggregate principal amount of the Loans at a prepayment price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the date of prepayment solely with the net proceeds of a Qualified Public Equity Offering, with any additional prepayments of Loans with the net proceeds of such Qualified Public Equity Offering to be made at the relevant prepayment price as otherwise set forth in the table above.thereafter
(b) Notwithstanding the foregoing or the provisions of Section 2.02(d) below, the Lenders and the Borrower agree and acknowledge that the Credit Agreement prohibits any payments that would otherwise be made to the Lenders under Section 2.02(a) or (d) and, as a result thereof, no payment shall be made to the Lenders under Section 2.02(a) or (d) unless and only to the extent the Credit Agreement is amended or modified to provide that such amounts may be paid to the Lenders.
(c) All prepayments (whether voluntary or mandatory) shall include payment of accrued interest on the principal amount of the Loans so prepaid and shall be applied to payment of accrued interest before application to principal. Any payment of the Loans as a result of an Event of Default (or the acceleration of the Loans resulting therefrom) and all mandatory prepayments (including, without limitation, payments pursuant to Section 2.02(d2.02(c)) shall be deemed a voluntary prepayment for the purposes of this Section 2 and shall be paid at the payment price specified in Section 2.02
(a2.02(a) as if such payment had been voluntary; provided that (x) any payment of Loans made as a result of an Event of Default arising under Section 7.03(a)(i) as a consequence of a default in the performance of any covenant contained in Section 6.07, 6.08 or 6.09 or the acceleration of the Loans resulting therefrom shall be paid at a prepayment price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the date of such prepayment and (y) any payment of Loans made pursuant to Section 2.02(e) shall be paid at the prepayment price specified in said Section. Except in the event a given Lender waives any right to payment of the Loans resulting from an Event of Default or declines to demand mandatory prepayment payment pursuant to Section 2.02(d2.02(c) (or waives, in part, repayment of a portion of its outstanding Loans to which it is otherwise entitled as a result of an Event of Default or demands repayment mandatory prepayment of its outstanding Loans in a lesser principal amount than it is otherwise entitled to pursuant to Section 2.02(d2.02(c)), all prepayments which are applied to principal will be applied on a pro rata basis to all Loans.
(dc) Upon The Borrower will apply, or cause its Subsidiaries to apply, the occurrence following amounts first to the permanent reduction of a Change the then outstanding Senior Debt under the Credit Agreement and any commitments thereunder to make revolving loans or issue letters of credit (in Control each case to the extent required under the terms of the Senior Debt) and next, to the extent not so used to prepay such Senior Debt in permanent reduction thereof or an Asset Saleto permanently reduce the commitments therefor, to the Obligations in the manner set forth in Section 2.02(b):
(i) on the date of the receipt (whether by contribution or otherwise) thereof by the Borrower or any Subsidiary of the Borrower, the Borrower shallshall repay, upon demand of any Lenderin accordance with Section 2.02(b), repay in full in cash, on the Business Day following any such demand, the unpaid outstanding principal an amount equal to (A)100% of the Loan made by such Lender at the prepayment price specified in Section 2.02(a) cash proceeds (net of underwriting discounts and commissions and all other amounts reasonable costs associated with such transaction) from any sale or issuance after the Effective Date of equity of the Borrower or any Subsidiary of the Borrower or from any equity contributions made to the Borrower or any Subsidiary of the Borrower (including accrued excluding equity contributions to any Subsidiary of the Borrower otherwise permitted hereunder); and unpaid interest(B) owing hereunder 100% of the cash proceeds (net of underwriting discounts and commissions, loan fees and all other reasonable costs associated with such transaction) from any incurrence of any Indebtedness by the Borrower or any Subsidiary of the Borrower (other Loan Documents than Indebtedness permitted to such Lender.be incurred pursuant to Section 6.04 as said Section is in effect on the Effective Date);
(eii) In addition to any other mandatory repayments required pursuant to this Section 2.02, on each date after the Effective Date upon on which the Borrower or any Subsidiary of its Subsidiaries the Borrower receives Net Sale Proceeds from any sale or other disposition of assets (including capital stock and securities other than capital stock or securities the proceeds from any key-man life insurancethe sale of which are recaptured pursuant to Section 2.02(c)(i)(A) or would be recaptured under Section 2.02(c)(i)(A) but for the exception contained therein), the Borrower shall prepay an aggregate principal amount of the Loans at a prepayment price equal to 101% in an amount equal to 50100% of such Net Sale Proceeds, but excluding Net Sale Proceeds of (A) sales of inventory in the ordinary course of business, and (B) other sales of assets so long as the aggregate amount of Net Sale Proceeds excluded pursuant to this clause (B) shall not exceed $200,000 in the aggregate for all such asset sales in any one fiscal year of the Borrower; and
(iii) on each date after the Effective Date on which the Borrower or any Subsidiary of the Borrower receives cash proceeds of any Recovery Event, an amount equal to 100% of such cash proceeds of such Recovery Event (net of reasonable costs incurred in connection with such Recovery Event, including the estimated marginal increase in income taxes which will be payable as a result of such Recovery Event by the Borrower or any Subsidiary of the Borrower); provided, however, that, so long as no Default or Event of Default then exists and (A) such proceeds are not in excess of $500,000 in the aggregate for all Recovery Events described in clause (i) of the definition thereof that occur during one fiscal year of the Borrower and $2,000,000 in the aggregate for all such Recovery Events that occur during the term of the Agreement, such proceeds shall not be required to be so repaid on such date to the extent that the Borrower delivers a certificate to the Lenders on or prior to such date stating that such proceeds shall be used (or shall be contractually committed to be used) to replace or restore any properties or assets in respect of which such proceeds were paid within a period specified in such certificate not to exceed one hundred eighty (180) days after the date of receipt of such proceeds (which certificate shall set forth estimates of the proceeds to be so expended); and (B)(x) if the amount of such proceeds received from any such Recovery Event described in clause (i) of the definition thereof, when aggregated with the total amount of all such proceeds from all Recovery Events occurring during the same fiscal year exceeds $500,000 or during the term of this Agreement exceeds $2,000,000 (excluding any amounts from any Recovery Events previously repaid pursuant to this Section 2.02(c)(iii)), the entire amount of proceeds from such key-man life insurance; provided that Recovery Event shall be repaid, and (y) if all or any portion of such proceeds not so repaid pursuant to this Section 2.02(c)(iii) are not so used (or are not so contractually committed to be used) within the period specified in the event that 50% of relevant certificate furnished pursuant to the proceeds preceding clause (A), such remaining portion shall be repaid on the last day of such key-man life insurance are paid directly to one or more Lenders (or any other financial institution that ceases to be a Lender hereunder upon assignment of all of its outstanding Loans pursuant to Section 10.04) as beneficiaries thereunder, such payment shall be deemed to be a prepayment by the Borrower of the Loans as provided above in this Sectionspecified period.
Appears in 1 contract
Samples: Senior Subordinated Loan Agreement (Thane International Inc)
Mandatory and Voluntary Prepayments. (a) The At any time after the First Anniversary of the Closing Date, the Borrower may, upon not less than three Business Daystwenty (20) days' and not more than five Business Dayssixty (60) days' prior written notice to the Lenders (Lenders, which notice shall be irrevocable), at any time and from time to time, prepay the Loans in whole or in part, provided, however, that (i) each partial prepayment pursuant to this Section 2.02(a) shall be in an aggregate principal amount of at least $500,000 and, if greater, in integral multiples of $500,000, and (ii) no such prepayment shall be made unless (x) there is no Senior Indebtedness outstanding under the Credit Agreement and all commitments under the Credit Agreement have been terminated or (y) the Credit Agreement expressly permits such payments or the Bank has, in writing, consented to such payment. In connection with any voluntary prepayment, there shall be no premium or penalty upon any prepayment. The Lenders shall have the Borrower shall prepay right to exercise their conversion rights under the Loan at the prepayment price set forth below (plus all accrued interest): % Convertible Notes following receipt of Principal Prepayment Date During the Period Being Paid From the Funding Date to 105% but not including the first anniversary of the Funding Date From the first anniversary of the Funding 104% Date to but not including the second anniversary of the Funding Date From the second anniversary of the Funding 103% Date to but not including the third anniversary of the Funding Date From the third anniversary of the Funding 102% Date to but not including the fourth anniversary of the Funding Date From the fourth anniversary of the Funding 101% Date such notice and at any time thereafter ; provided that on or prior to January 29, 2002, the Borrower may, at its option, prepay up to 33% of the initial aggregate principal amount of the Loans at a prepayment price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the date of prepayment solely with the net proceeds of a Qualified Public Equity Offering, with any additional prepayments of Loans with the net proceeds of such Qualified Public Equity Offering to be made at the relevant prepayment price as otherwise set forth in the table aboveprepayment.
(b) Notwithstanding the foregoing or the provisions of Section 2.02(d) belowforegoing, the Lenders and the Borrower agree and acknowledge that the Credit Agreement prohibits any payments that would otherwise be made to the Lenders under Section 2.02(a) or (d) and, as a result thereof, no payment shall be made to the Lenders under Section 2.02(a) or (d) unless and only to the extent the Credit Agreement is amended or modified to provide that such amounts may be paid to the Lenders.
(c) All prepayments (whether voluntary or mandatory) shall include payment of accrued interest on the principal amount of the Loans so prepaid and shall be applied to payment of accrued interest before application to principal. Any payment of the Loans as a result of an Event of Default (or the acceleration of the Loans resulting therefrom) and all mandatory prepayments (including, without limitation, payments pursuant to Section 2.02(d)) shall be deemed a voluntary prepayment for the purposes of this Section 2 and shall be paid at the payment price specified in Section 2.02
(a) as if such payment had been voluntary; provided that (x) any payment of Loans made as a result of an Event of Default arising under Section 7.03(a)(i) as a consequence of a default in the performance of any covenant contained in Section 6.07, 6.08 or 6.09 or the acceleration of the Loans resulting therefrom shall be paid at a prepayment price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the date of such prepayment and (y) any payment of Loans made pursuant to Section 2.02(e) shall be paid at the prepayment price specified in said Section. Except in the event a given Lender waives any right to payment of the Loans resulting from an Event of Default or declines to demand payment pursuant to Section 2.02(d) (or waives, in part, repayment of a portion of its outstanding Loans to which it is otherwise entitled as a result of an Event of Default or demands repayment of its outstanding Loans in a lesser principal amount than it is otherwise entitled to pursuant to Section 2.02(d)Default), all prepayments which are applied to principal will be applied on a pro rata basis to all Loans.
(d) Upon the occurrence of a Change in Control or an Asset Sale, the Borrower shall, upon demand of any Lender, repay in full in cash, on the Business Day following any such demand, the unpaid outstanding principal amount of the Loan made by such Lender at the prepayment price specified in Section 2.02(a) and all other amounts (including accrued and unpaid interest) owing hereunder and the other Loan Documents to such Lender.
(e) In addition to any other mandatory repayments required pursuant to this Section 2.02, on each date after the Effective Date upon which the Borrower or any of its Subsidiaries receives any proceeds from any key-man life insurance, the Borrower shall prepay an aggregate principal amount of the Loans at a prepayment price equal to 101% in an amount equal to 50% of the amount of proceeds received from such key-man life insurance; provided that in the event that 50% of the proceeds of such key-man life insurance are paid directly to one or more Lenders (or any other financial institution that ceases to be a Lender hereunder upon assignment of all of its outstanding Loans pursuant to Section 10.04) as beneficiaries thereunder, such payment shall be deemed to be a prepayment by the Borrower of the Loans as provided above in this Section
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Mandatory and Voluntary Prepayments. (a) The Borrower mayshall have the right, upon not less than three Business Days' at its option and not more than five Business Days' prior written notice subject to the Lenders requirements of Section 2.4, to prepay the Term Loan as provided in this Section 2A.2. Any prepayment under this subsection shall applied to the prepayment of the aggregate unpaid principal amount of the Term Note. Prepayment under this subparagraph (which notice a) shall be irrevocable), at subject to the following additional conditions:
(1) In no event shall the Term Note be partially prepaid.
(2) Prepayment applied to the Term Note may be made on any time and from time to time, prepay the Loans in whole or in partBusiness Day, provided, however, that (i) each partial prepayment pursuant to this Section 2.02(athe Borrower shall have given the Lender at least five (5) shall be in an aggregate Business Days' prior irrevocable written or telecopied notice of such prepayment, specifying the principal amount of at least $500,000 andthe Term Note to be prepaid, if greater, in integral multiples which shall be the entire amount of $500,000the outstanding principal of the Term Note, and (ii) no if such prepayment shall be is made unless (x) there is no Senior Indebtedness outstanding under on any day other than the Credit Agreement and all commitments under the Credit Agreement have been terminated or (y) the Credit Agreement expressly permits such payments or the Bank has, in writing, consented to such payment. In connection with any voluntary prepaymentTerm Loan Maturity Date, the Borrower shall prepay pay directly to the Loan at the prepayment price set forth below (plus all accrued interest): % of Principal Prepayment Date During the Period Being Paid From the Funding Date to 105% but not including the first anniversary of the Funding Date From the first anniversary of the Funding 104% Date to but not including the second anniversary of the Funding Date From the second anniversary of the Funding 103% Date to but not including the third anniversary of the Funding Date From the third anniversary of the Funding 102% Date to but not including the fourth anniversary of the Funding Date From the fourth anniversary of the Funding 101% Date and at any time thereafter ; provided that Lender, on or prior to January 29, 2002, the Borrower may, at its option, prepay up to 33% of the initial aggregate principal amount of the Loans at a prepayment price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the date of prepayment solely with such prepayment, the net proceeds of Consequential Loss as a Qualified Public Equity Offering, with any additional prepayments of Loans with the net proceeds result of such Qualified Public Equity Offering to be made at the relevant prepayment price as otherwise set forth in the table aboveprepayment.
(b) Notwithstanding the foregoing or the provisions Notice of Section 2.02(d) belowany prepayment having been given, the Lenders and the Borrower agree and acknowledge that the Credit Agreement prohibits any payments that would otherwise be made to the Lenders under Section 2.02(a) or (d) and, as a result thereof, no payment shall be made to the Lenders under Section 2.02(a) or (d) unless and only to the extent the Credit Agreement is amended or modified to provide that such amounts may be paid to the Lenders.
(c) All prepayments (whether voluntary or mandatory) shall include payment of accrued interest on the principal amount of the Loans so prepaid and shall be applied to payment of accrued interest before application to principal. Any payment of the Loans as a result of an Event of Default (or the acceleration of the Loans resulting therefrom) and all mandatory prepayments (including, without limitation, payments pursuant to Section 2.02(d)) shall be deemed a voluntary prepayment for the purposes of this Section 2 and shall be paid at the payment price specified in Section 2.02
(a) as if such payment had been voluntary; provided that (x) any payment of Loans made as a result of an Event of Default arising under Section 7.03(a)(i) as a consequence of a default in the performance of any covenant contained in Section 6.07notice, 6.08 or 6.09 or the acceleration of the Loans resulting therefrom shall be paid at a prepayment price equal to 101% of the principal amount thereof, plus accrued and unpaid together with interest thereon, if any, thereon to the date of prepayment, shall be due and payable on such prepayment and (y) any payment of Loans made pursuant to Section 2.02(e) shall be paid at the prepayment price specified in said Section. Except in the event a given Lender waives any right to payment of the Loans resulting from an Event of Default or declines to demand payment pursuant to Section 2.02(d) (or waives, in part, repayment of a portion of its outstanding Loans to which it is otherwise entitled as a result of an Event of Default or demands repayment of its outstanding Loans in a lesser principal amount than it is otherwise entitled to pursuant to Section 2.02(d)), all prepayments which are applied to principal will be applied on a pro rata basis to all Loansdate.
(d) Upon the occurrence of a Change in Control or an Asset Sale, the Borrower shall, upon demand of any Lender, repay in full in cash, on the Business Day following any such demand, the unpaid outstanding principal amount of the Loan made by such Lender at the prepayment price specified in Section 2.02(a) and all other amounts (including accrued and unpaid interest) owing hereunder and the other Loan Documents to such Lender.
(e) In addition to any other mandatory repayments required pursuant to this Section 2.02, on each date after the Effective Date upon which the Borrower or any of its Subsidiaries receives any proceeds from any key-man life insurance, the Borrower shall prepay an aggregate principal amount of the Loans at a prepayment price equal to 101% in an amount equal to 50% of the amount of proceeds received from such key-man life insurance; provided that in the event that 50% of the proceeds of such key-man life insurance are paid directly to one or more Lenders (or any other financial institution that ceases to be a Lender hereunder upon assignment of all of its outstanding Loans pursuant to Section 10.04) as beneficiaries thereunder, such payment shall be deemed to be a prepayment by the Borrower of the Loans as provided above in this Section
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