Mandatory Prepayment of Term Loans. (i) The Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion of such Net Cash Proceeds applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal year, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9.
Appears in 4 contracts
Samples: Credit Agreement (Univar Inc.), Credit Agreement (Univar Inc.), Credit Agreement (Univar Inc.)
Mandatory Prepayment of Term Loans. (i1) The Borrower shallwill apply all Net Cash Proceeds received in an Asset Sale made pursuant to Section 6.05(2) (other than any ABL Priority Collateral Asset Sale) or any Sale and Lease-Back Transaction to prepay Term Loans within ten Business Days following receipt of such Net Cash Proceeds, unless the Borrower has delivered a Reinvestment Notice on or prior to such tenth Business Day; provided that:
(a) if any Event of Default has occurred and is continuing, on or prior to the tenth Business Day following receipt thereof, such Net Cash Proceeds will be deposited in accordance with Subsection 4.4(gan Asset Sale Proceeds Account;
(b) subject to the other provisions of this Section 2.08(1), prepay on each Reinvestment Prepayment Date the Term Loans Borrower will apply an amount equal to the extent required by Subsection 8.4(b) (subject Reinvestment Prepayment Amount with respect to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings or any relevant Reinvestment Event to the prepayment of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in together with accrued interest thereon); and
(c) if at the case of the incurrence of time that any Specified Refinancing Term Loanssuch prepayment would be required, the Tranche Borrower is required to, or to offer to, repurchase, redeem, repay or prepay Indebtedness secured on a pari passu basis with the Term Loans (any such Indebtedness, “Other First Lien Indebtedness”), then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay all Classes of Term Loans being refinanced) in and Other First Lien Indebtedness on a Dollar Equivalent amount equal to 100.0% pro rata basis (determined on the basis of the Net Cash Proceeds thereof minus aggregate outstanding principal amount of the Term Loans and Other First Lien Indebtedness at such time); provided, further, that the portion of such Net Cash Proceeds allocated to the Other First Lien Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated to the Other First Lien Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds will be allocated to the prepayment of the Term Loans (in accordance with the terms hereof) and to the repurchase or repayment of Other First Lien Indebtedness, and the amount of the prepayment of the Term Loans that would have otherwise been required pursuant to this clause (1) will be reduced accordingly; provided further, that to the extent the holders of Other First Lien Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid with such Net Cash Proceeds, the declined amount of such Net Cash Proceeds will promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ Excess Net Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of such prepayment exceeded the amount of prepayments Proceeds would otherwise have been required to be made from Holdings’ Excess Cash Flow in so applied if such fiscal year, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Other First Lien Indebtedness (the amount described in this clause (Awas not then outstanding), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9.
Appears in 4 contracts
Samples: Term Loan Credit Agreement (PET Acquisition LLC), Term Loan Credit Agreement (PET Acquisition LLC), Term Loan Credit Agreement (PET Acquisition LLC)
Mandatory Prepayment of Term Loans. (ia) The Borrower shallOn and after the Acquisition Closing Date, if any Indebtedness shall be issued or incurred by the Company or any Restricted Subsidiary (excluding any Indebtedness incurred in accordance with Subsection 4.4(gSection 6.18), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0100% of the Net Cash Proceeds thereof minus shall be applied on the portion date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in Section 2.6.9.
(b) On and after the Acquisition Closing Date, if the Company or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale Prepayment Event or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, 100% of such Net Cash Proceeds shall be applied (on or prior to the extent Borrower fifth Business Day after such receipt (or any in the case of its Subsidiaries is an Asset Sale Prepayment Event or Recovery Event in an amount less than $75,000,000, on or prior to the date five Business Days after the date the financial statements for the fiscal quarter in which such event occurred are required by to be delivered pursuant to Section 6.01(i) or (ii)), toward the terms thereof) prepayment of the Term Loans as set forth in Section 2.6.9; provided that, notwithstanding the foregoing, no later than each Reinvestment Prepayment Date, an amount equal to prepaythe Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 2.6.9. Notwithstanding the foregoing, repay or purchase Pari Passu Indebtedness if, on a pro rata basis Pro Forma Basis after giving effect to any Asset Sale Prepayment Event or Recovery Event the Company’s Total Net Leverage Ratio is less than 2.50 to 1.00, the Net Cash Proceeds from such Asset Sale Prepayment Event or Recovery Event shall not be subject to the prepayment requirements of this clause (b).
(c) On and after the Acquisition Closing Date, if, for any fiscal year of the Company commencing with the first full fiscal year ending after the Acquisition Closing Date, there shall be Excess Cash Flow, the Company shall, on the relevant Excess Cash Flow Application Date (as defined below), apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans, Loans as set forth in each case Section 2.6.9. Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five Business Days after the date on which the financial statements of the Borrower referred to in Section 6.1(i) for the fiscal year with respect to which such prepayment to be made on or before the fifth Business Day following notice given are required to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant delivered to the last proviso of this clause Lenders; provided that (iii)i) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount any voluntary prepayments of Term Loans (including Incremental Term Loansduring such fiscal year, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments funded with respect thereto are permanently reduced), in each case internally generated cash and (ii) voluntary prepayments made on the Revolving Credit Loans during such Fiscal Year and (y) fiscal year that were accompanied by an equal permanent reduction of the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal yearRevolving Credit Commitments, in each case, excluding shall be credited against the Company’s obligation to make prepayments funded with proceeds from the Incurrence under this Section 2.6.5(c) for such fiscal year on a dollar-for-dollar basis. Prepayments from, and, without duplication, of long-term Indebtedness (the amount described in this clause (A)amounts equal to, the “ECF Net Cash Proceeds of any Asset Sale Prepayment Amount”) minus (B) the portion Event or Recovery Event or Excess Cash Flow by or of such ECF Prepayment Amount applied a Foreign Subsidiary (to the extent Borrower otherwise required) will be limited to the extent (x) the repatriation of Foreign Subsidiaries’ funds to fund such prepayments is prohibited, restricted or delayed by applicable laws, (y) repatriation of Foreign Subsidiaries’ funds to fund such prepayment could reasonably be expected to result in adverse tax consequences to the Company and its Restricted Subsidiaries or (z) such funds originate at the Target or its Subsidiaries prior to the Domination Agreement Effective Date. All mandatory prepayments are subject to permissibility under (a) in the case of Foreign Subsidiaries, local law restrictions (such as restrictions relating to financial assistance, corporate benefit, restrictions on upstreaming of cash intra-group and the fiduciary and statutory duties of the directors of the relevant Restricted Subsidiaries) and (b) with respect to non-Wholly Owned Restricted Subsidiaries, organizational document restrictions, to the extent not created in contemplation of such prepayments. The non-application of any such mandatory prepayment amounts in compliance with the foregoing provisions of this paragraph will not constitute an Unmatured Default or Default and such amounts shall be available for working capital purposes of the Company and its Restricted Subsidiaries. The Company will undertake to use commercially reasonable efforts to overcome or eliminate any such restrictions and/or minimize any such costs of prepayment (subject to the considerations above) to make the relevant payment, other than, for the avoidance of doubt, to the extent resulting from asset sales or operations of the Target and its Restricted Subsidiaries prior to the Domination Agreement Effective Date. Notwithstanding the foregoing, any prepayments made after application of the above provisions shall be net of any costs, expenses or taxes incurred by the Company and its Restricted Subsidiaries or any of its Subsidiaries is required by the terms thereof) to prepay, repay Affiliates or purchase Pari Passu Indebtedness on equity partners and arising as a pro rata basis result of compliance with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9paragraph.
Appears in 4 contracts
Samples: Credit Agreement (DIEBOLD NIXDORF, Inc), Credit Agreement (DIEBOLD NIXDORF, Inc), Credit Agreement (DIEBOLD NIXDORF, Inc)
Mandatory Prepayment of Term Loans. (ia) The Borrower shallOn and after the Acquisition Closing Date, if any Indebtedness shall be issued or incurred by the Company or any Restricted Subsidiary (excluding any Indebtedness incurred in accordance with Subsection 4.4(gSection 6.18), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0100% of the Net Cash Proceeds thereof minus shall be applied on the portion date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in Section 2.6.9.
(b) On and after the Acquisition Closing Date, if the Company or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale Prepayment Event or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, 100% of such Net Cash Proceeds shall be applied (on or prior to the extent Borrower fifth Business Day after such receipt (or in the case of an Asset Sale Prepayment Event or Recovery Event in an amount less than $75,000,000, on or prior to the date five Business Days after the date the financial statements for the fiscal quarter in which such event occurred are required to be delivered pursuant to Section 6.01(i) or (ii)), toward the prepayment of the Term Loans as set forth in Section 2.6.9; provided that, notwithstanding the foregoing, no later than each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 2.6.9.
(c) On and after the Acquisition Closing Date, if, for any fiscal year of its Subsidiaries is required by the terms thereof) to prepayCompany commencing with the first full fiscal year ending after the Acquisition Closing Date, repay or purchase Pari Passu Indebtedness there shall be Excess Cash Flow, the Company shall, on the relevant Excess Cash Flow Application Date (as defined below), apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans as set forth in Section 2.6.9. Each such prepayment and commitment reduction shall be made on a pro rata basis date (an “Excess Cash Flow Application Date”) no later than five Business Days after the date on which the financial statements of the Borrower referred to in Section 6.1(i) for the fiscal year with the Term Loans, in each case with respect to which such prepayment to be made on or before the fifth Business Day following notice given are required to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant delivered to the last proviso of this clause Lenders; provided that (iii)i) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount any voluntary prepayments of Term Loans (including Incremental Term Loansduring such fiscal year, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments funded with respect thereto are permanently reduced), in each case internally generated cash and (ii) voluntary prepayments made on the Revolving Credit Loans during such Fiscal Year and (y) fiscal year that were accompanied by an equal permanent reduction of the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal yearRevolving Credit Commitments, in each case, excluding shall be credited against the Company’s obligation to make prepayments funded with proceeds from the Incurrence under this Section 2.6.5(c) for such fiscal year on a dollar-for-dollar basis. Prepayments from, and, without duplication, of long-term Indebtedness (the amount described in this clause (A)amounts equal to, the “ECF Net Cash Proceeds of any Asset Sale Prepayment Amount”) minus (B) the portion Event or Recovery Event or Excess Cash Flow by or of such ECF Prepayment Amount applied a Foreign Subsidiary (to the extent Borrower otherwise required) will be limited to the extent (x) the repatriation of Foreign Subsidiaries’ funds to fund such prepayments is prohibited, restricted or delayed by applicable laws, (y) repatriation of Foreign Subsidiaries’ funds to fund such prepayment could reasonably be expected to result in adverse tax consequences to the Company and its Restricted Subsidiaries or (z) such funds originate at the Target or its Subsidiaries prior to the Domination Agreement Effective Date. All mandatory prepayments are subject to permissibility under (a) in the case of Foreign Subsidiaries, local law restrictions (such as restrictions relating to financial assistance, corporate benefit, restrictions on upstreaming of cash intra-group and the fiduciary and statutory duties of the directors of the relevant Restricted Subsidiaries) and (b) with respect to non-Wholly Owned Restricted Subsidiaries, organizational document restrictions, to the extent not created in contemplation of such prepayments. The non-application of any such mandatory prepayment amounts in compliance with the foregoing provisions of this paragraph will not constitute an Unmatured Default or Default and such amounts shall be available for working capital purposes of the Company and its Restricted Subsidiaries. The Company will undertake to use commercially reasonable efforts to overcome or eliminate any such restrictions and/or minimize any such costs of prepayment (subject to the considerations above) to make the relevant payment, other than, for the avoidance of doubt, to the extent resulting from asset sales or operations of the Target and its Restricted Subsidiaries prior to the Domination Agreement Effective Date. Notwithstanding the foregoing, any prepayments made after application of the above provisions shall be net of any costs, expenses or taxes incurred by the Company and its Restricted Subsidiaries or any of its Subsidiaries is required by the terms thereof) to prepay, repay Affiliates or purchase Pari Passu Indebtedness on equity partners and arising as a pro rata basis result of compliance with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9paragraph.
Appears in 3 contracts
Samples: Credit Agreement (Diebold Inc), Credit Agreement (Diebold Inc), Credit Agreement (Diebold Inc)
Mandatory Prepayment of Term Loans. (i1) The Borrower shallwill apply all Net Cash Proceeds received in an Asset Sale made pursuant to Section 6.05(2) (other than Net Cash Proceeds attributable to any ABL Priority Collateral Asset Sale) to prepay Term Loans within ten Business Days following receipt of such Net Cash Proceeds, unless the Borrower has delivered a Reinvestment Notice on or prior to such tenth Business Day; provided that:
(a) if any Event of Default has occurred and is continuing, on or prior to the tenth Business Day following receipt thereof, such Net Cash Proceeds will be deposited in accordance with Subsection 4.4(gan Asset Sale Proceeds Account;
(b) subject to the other provisions of this Section 2.08(1), prepay on each Reinvestment Prepayment Date the Term Loans Borrower will apply an amount equal to the extent required by Subsection 8.4(b) (subject Reinvestment Prepayment Amount with respect to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings or any relevant Reinvestment Event to the prepayment of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in together with accrued interest thereon); and
(c) if at the case of the incurrence of time that any Specified Refinancing Term Loanssuch prepayment would be required, the Tranche Borrower is required to, or to offer to, repurchase, redeem, repay or prepay Indebtedness secured on a pari passu basis with the Term Loans (any such Indebtedness, “Other First Lien Indebtedness”), then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay all Classes of Term Loans being refinanced) in and Other First Lien Indebtedness on a Dollar Equivalent amount equal to 100.0% pro rata basis (determined on the basis of the Net Cash Proceeds thereof minus aggregate outstanding principal amount of the Term Loans and Other First Lien Indebtedness at such time); provided, further, that the portion of such Net Cash Proceeds allocated to the Other First Lien Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated to the Other First Lien Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds will be allocated to the prepayment of the Term Loans (in accordance with the terms hereof) and to the repurchase or repayment of Other First Lien Indebtedness, and the amount of the prepayment of the Term Loans that would have otherwise been required pursuant to this clause (1) will be reduced accordingly; provided, further, that to the extent the holders of Other First Lien Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid with such Net Cash Proceeds, the declined amount of such Net Cash Proceeds will promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof (to the extent Borrower or any of its Subsidiaries is such Net Cash Proceeds would otherwise have been required by the terms thereofto be so applied if such Other First Lien Indebtedness was not then outstanding).
(2) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis Commencing with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year Excess Cash Flow Period ending on or about December around January 31, 2016) (each2018, an “ECF Payment Date”)not later than 110 days after the end of each Excess Cash Flow Period, in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ Borrower will calculate Excess Cash Flow for such Fiscal Year minus (2) Excess Cash Flow Period and will apply the sum of (x) following amount to the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and any prepayment of Term Loans Loans:
(including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loansa) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount Required Percentage of such prepaymentExcess Cash Flow; minus
(b) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of any voluntary prepayments during such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal year, in each case, excluding prepayments funded with proceeds from Period or on or prior to the Incurrence of long-term Indebtedness (110th day after the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion end of such ECF Prepayment Amount applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9.Excess Cash Flow Period of:
Appears in 3 contracts
Samples: First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.), First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.), First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Mandatory Prepayment of Term Loans. (a) No later than ten (10) Business Days after the date on which the financial statements with respect to each fiscal year of the Borrower are required to be delivered pursuant to Section 5.01 (a), commencing with the fiscal year ending on December 31, 2007, the Borrower shall prepay outstanding Term Loans in an aggregate principal amount equal to (A) 50% of Excess Cash Flow for the fiscal year then ended, minus (B) the amount of any prepayments of Term Loans or Pre-Funded L/C Loans made pursuant to Section 2.08 (so long as a corresponding reduction in Pre-Funded L/C Commitments is made), the amount of any voluntary prepayments of loans under the Senior Secured Asset-Based Revolving Credit Agreement solely to the extent there is an equivalent permanent reduction in revolving commitments thereunder and the amount of any voluntary reductions in Pre-Funded L/C Commitments solely to the extent that there is an equal amount of Credit-Linked Deposits repaid to the Lenders, in each case during such fiscal year, except to the extent that such prepayments were financed with the proceeds of other Indebtedness of the Borrower or its Subsidiaries; provided that (i) The such percentage of Excess Cash Flow shall be reduced to 25% of such Excess Cash Flow if the Consolidated Leverage Ratio at the end of such fiscal year shall be equal to or less than 3.00 to 1.00, but greater than 2.00 to 1.00, and (ii) such prepayment shall not be required if the Consolidated Leverage Ratio at the end of such fiscal year shall be equal to or less than 2.00 to 1.00.
(i) Not later than the third Business Day following the receipt of Net Proceeds in respect of any Asset Sale, the Borrower shall, shall apply an amount equal to 100% of the Net Proceeds received with respect thereto to prepay outstanding Term Loans in accordance with Subsection 4.4(gSection 2.09(d), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), .
(ii) if on or after Not later than the Closing Datethird Business Day following the receipt of Net Insurance/Condemnation Proceeds, Holdings the Borrower shall apply an amount equal to 100% of such Net Insurance/Condemnation Proceeds to prepay outstanding Term Loans in accordance with Section 2.09(d).
(c) In the event that any Loan Party or any subsidiary of its Restricted Subsidiaries a Loan Party shall Incur receive Net Proceeds from the issuance or incurrence of Indebtedness for money borrowed of any Loan Party or any subsidiary of a Loan Party (other than any cash proceeds from the issuance of Indebtedness for money (excluding Indebtedness borrowed permitted pursuant to Subsection 8.1 other than Specified Refinancing Term LoansSection 6.01), the Borrower shall, substantially simultaneously with (and in any event not later than the third Business Day next following) the receipt of such Net Proceeds by such Loan Party or such subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay outstanding Term Loans in accordance with Subsection 4.4(gSection 2.09(d).
(d) All amounts required to be paid pursuant to this Section 2.09 shall be applied to prepay outstanding Term Loans of the Lenders that accept the same (and pro rata among such Lenders), prepay which prepayments any Lender may elect, by notice to the Term Loans (or, Administrative Agent at or prior to the time and in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion of such Net Cash Proceeds applied (to the extent Borrower or any of its Subsidiaries is required manner specified by the terms thereof) Administrative Agent, prior to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) required to be made by the Borrower pursuant to Subsection 4.4(lthis Section 2.09, to decline all (but not a portion) of its pro rata share of such prepayment (provided that such deduction for prepayments pursuant to Subsection 4.4(l) declined amounts, the “Declined Proceeds”). Any Declined Proceeds shall be limited offered to the actual cash Lenders not so declining such prepayment (with such Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). All accepted prepayments shall be applied to the repayment of the then remaining applicable Scheduled Loan Repayments in forward order of maturity then, with respect to such mandatory prepayment, the amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans mandatory prepayment shall be applied first to ABR Term Loans to the full extent thereof before application to LIBO Rate Term Loans in a manner that minimizes the amount of any commitments with respect thereto are permanently reduced)payments required to be made by the Borrower pursuant to Section 2.14. Thereafter, in each case during such Fiscal Year and the remaining Declined Proceeds may be retained by the Borrower.
(ye) the aggregate amount in respect of clause (x) from previous fiscal years The Borrower shall deliver to the extent Administrative Agent, at the time of each prepayment required under this Section 2.09, (i) a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal year, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness and (the amount described in this clause (A), the “ECF Prepayment Amount”ii) minus (B) the portion of such ECF Prepayment Amount applied (to the extent Borrower practicable, at least five (5) days’ prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Term Loan being prepaid and the principal amount of each Term Loan (or any of its Subsidiaries is required by the terms portion thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above be prepaid. Prepayments shall be reduced accompanied by accrued interest as required by Section 2.11. All prepayments of Borrowings under this Section 2.09 shall be subject to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) Section 2.14, but shall limit the rights of the Agents and the Lenders set forth in Subsection 9otherwise be without premium or penalty.
Appears in 3 contracts
Samples: Term Loan Credit Agreement (TMS International Corp.), Term Loan Credit Agreement (TMS International Corp.), Term Loan Credit Agreement (Tube City IMS CORP)
Mandatory Prepayment of Term Loans. (i) The Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings the Borrower or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0100.00% of the Net Cash Proceeds thereof minus the portion of such Net Cash Proceeds applied (to the extent the Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) ), and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days no later than the 10th Business Day after the 120th day following the last day of the immediately preceding Fiscal Year (commencing with the first Fiscal Year ending on or about December 31, 2016commencing after the Closing Date) (each, an “ECF Payment Date”), in a Dollar Equivalent an amount equal to (AA)(1) (1) 50.050.00% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ the Borrower’s Excess Cash Flow for such Fiscal Year minus (2) the sum of (xw) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) prepaid pursuant to Subsection 4.4(a) and Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount which, in respect of any event, shall not include any designated prepayment pursuant to clause (x) from previous fiscal years below), (x) the aggregate principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) prepaid pursuant to Subsection 4.4(a) and Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment), in each case during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(e)(iii) (provided that no prepayments made pursuant to the other clauses of this Subsection 4.4(e) shall be included in Subsections 4.4(e)(iii)(A)(2)(w) or (x)), (y) any ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Senior ABL Facility during such Fiscal Year (which, in any event, shall not include any designated prepayment exceeded pursuant to clause (z) below), and (z) the aggregate principal amount of prepayments required ABL Facility Loans prepaid to be made from Holdings’ Excess Cash Flow in the extent accompanied by a corresponding permanent commitment reduction under the Senior ABL Facility during the period beginning with the day following the last day of such fiscal yearFiscal Year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(e)(iii), in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (including a revolving credit facility) (the amount described in this clause (A), the “ECF Prepayment Payment Amount”) minus (B) the portion of such ECF Prepayment Payment Amount applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to (I) 25.00% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than or equal to 3.00:1.00 but greater than 2.50:1.00 and (II) 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00or equal to 2.50:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection Section 9.
Appears in 2 contracts
Samples: Incremental Term Loan Agreement (Floor & Decor Holdings, Inc.), Credit Agreement (Floor & Decor Holdings, Inc.)
Mandatory Prepayment of Term Loans. (ia) The Borrower shall, in accordance Within five (5) Business Days of Loyalty Co or any other SPV Party receiving any Net Proceeds from the issuance or incurrence of any Indebtedness of Loyalty Co or any other SPV Party (other than with Subsection 4.4(grespect to any Indebtedness permitted to be incurred pursuant to Section 6.02), the Borrowers shall prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an aggregate amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion Term Loans’ Pro Rata Share of such Net Cash Proceeds applied Proceeds.
(to b) No later than ten (10) Business Days following the extent Borrower date of receipt by Delta or any of its Subsidiaries of any Net Proceeds in respect of any Recovery Event (in each case, in respect of Collateral) which Net Proceeds, together with the aggregate amount of Net Proceeds previously received from Recovery Events since the Closing Date, are in excess of $10.0 million (the “Threshold Amount”, and all such Net Proceeds in excess of the Threshold Amount, “Excess Proceeds”), the Borrowers shall (i) give written notice to the Administrative Agent of such Recovery Event and (ii) offer to prepay the Term Loans in an aggregate amount equal to the Term Loans’ Pro Rata Share of such Excess Proceeds (other than any such Excess Proceeds withheld for reinvestment pursuant to the proviso in this clause (b)) no later than the tenth (10th) Business Day following the date of receipt of such Net Proceeds; provided that (1) so long as no Event of Default shall have occurred and be continuing at the time of receipt of such Excess Proceeds, the Borrowers shall have the option to (x) invest such Excess Proceeds within 365 days of receipt thereof in Qualified Replacement Assets or (y) repair, replace or restore the assets which are the subject of such Recovery Event; and (2) within ten (10) Business Days of the end of such 365 day period (or earlier if the Borrowers so elect), the Borrowers shall offer to prepay the Term Loans in an aggregate amount equal to the Term Loans’ Pro Rata Share of the aggregate amount of such Excess Proceeds not used in accordance with the preceding subclause (1). Any Lender may elect, by notice to the Administrative Agent at least two Business Days prior to the prepayment date, to decline all (but not less than all) of the prepayment of any Class of its Term Loans pursuant to this Section 2.12(b), in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be retained by Loyalty Co.
(c) No later than ten (10) Business Days following the date of receipt by Delta or any of its Subsidiaries of any Net Proceeds in respect of (x) any Collateral Sale of SkyMiles Intellectual Property (other than with respect to any Permitted Pre-paid Miles Purchase or Permitted Disposition) or (y) any Collateral Sale which Net Proceeds, together with the aggregate amount of Net Proceeds previously received from Collateral Sales during the fiscal year in which such date occurs, are in excess of $10.0 million (the “CS Threshold Amount”, and all such Net Proceeds in excess of the CS Threshold Amount together with all Net Proceeds of any Collateral Sale of SkyMiles Intellectual Property, “CS Excess Proceeds”), the Borrowers shall offer to prepay the Term Loans in an aggregate amount equal to Term Loans’ Pro Rata Share of such CS Excess Proceeds no later than the tenth (10th) Business Day following the date of receipt of such CS Excess Proceeds. Any Lender may elect, by notice to the Administrative Agent at least two Business Days prior to the prepayment date, to decline all (but not less than all) of the prepayment of any Class of its Term Loans pursuant to this Section 2.12(c), in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be retained by Loyalty Co. Notwithstanding anything herein to the contrary, no sales of Collateral shall be permitted during the continuance of any Early Amortization Period or Event of Default or if an Early Amortization Event or Event of Default would result therefrom.
(d) Within ten (10) Business Days of Delta or any of its Subsidiaries receiving any Net Proceeds as a result of any Contingent Payment Event which Net Proceeds, together with the aggregate amount of Net Proceeds previously received from Contingent Payment Events since the Closing Date, are in excess of $50.0 million, the Borrowers shall offer to prepay the Term Loans in an aggregate amount equal to the Term Loans’ Pro Rata Share of such excess Net Proceeds. Any Lender may elect, by notice to the Administrative Agent at least two Business Days prior to the prepayment date, to decline all (but not less than all) of the prepayment of any Class of its Term Loans pursuant to this Section 2.12(d), in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be retained by Loyalty Co.
(e) Within ten (10) Business Days of Delta or any of its Subsidiaries receiving any Net Proceeds of a Pre-paid Miles Purchase which Net Proceeds, together with the aggregate amount of Net Proceeds previously received from Pre-paid Miles Purchases since the Closing Date, are in excess of $500.0 million, the Borrowers shall prepay the Term Loans in an aggregate amount equal to the Term Loans’ Pro Rata Share of such excess Net Proceeds; provided that the Borrowers shall not be required to make such prepayment so long as the aggregate amount of Net Proceeds received from Pre-Paid Miles Purchases since the Closing Date is less than $505.0 million.
(f) Within five (5) Business Days following the occurrence of a Parent Change of Control Triggering Event, the Borrowers shall offer to prepay all of each Lender’s Term Loans at a purchase price in cash equal to 100% of the aggregate principal amount of the Term Loans prepaid. The repayment date shall be no later than thirty (30) days from the date such offer is made. Any Lender may elect, by notice to the Administrative Agent at least two (2) Business Days prior to the prepayment date, to decline all (but not less than all) of the prepayment of any Class of its Term Loans pursuant to this Section 2.12(f).
(g) Amounts required by to be applied to the terms thereofprepayment of Term Loans pursuant to Section 2.12(a) through (f) shall be applied to prepay, repay or purchase Pari Passu Indebtedness prepay on a pro rata basis with the remaining scheduled amortization payments of the Term Loans. To the extent that such amounts are not applied on a Payment Date pursuant to Section 2.10(b), the Borrowers shall provide the Collateral Administrator with payment instructions setting forth the applicable amounts and payees in each case with respect thereof. All prepayments under Section 2.12 shall be accompanied (inclusive of all Premiums owed on account of any such prepayment prepayment) by accrued but unpaid interest on the principal amount being prepaid to be made on or before (but not including) the fifth Business Day following notice given to each Lender date of the Prepayment Dateprepayment, plus any Fees (if any) included in, and any losses, costs and expenses, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, more fully described in accordance with Subsection 4.4(g), prepay the Section 2.15. Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall Section 2.12 may not be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to reborrowed. To the extent that any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of such prepayment exceeded the amount of prepayments amounts required to be made from Holdings’ Excess Cash Flow applied as a prepayment pursuant to this Section 2.12 are on deposit in such fiscal yearthe Collection Account on any Payment Date on which an Event of Default is not continuing, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (amount allocated to the extent Borrower or any of its Subsidiaries is required by Term Loans pursuant to the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above Collateral Agency and Accounts Agreement shall be reduced applied as Available Funds on such Payment Date pursuant to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9Section 2.10(b).
Appears in 2 contracts
Samples: Term Loan Credit and Guaranty Agreement (Delta Air Lines, Inc.), Term Loan Credit and Guaranty Agreement (Delta Air Lines, Inc.)
Mandatory Prepayment of Term Loans. (a) No later than three Business Days after the earlier of (i) The Borrower shallninety (90) days after the end of each fiscal year of the Borrower, in accordance commencing with Subsection 4.4(g)the fiscal year ending on December 31, prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c))2018, and (ii) if the date on or after which the Closing Date, Holdings or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted financial statements with respect to such fiscal year are delivered pursuant to Subsection 8.1 other than Specified Refinancing Term LoansSection 5.01(a) (the “Excess Cash Flow Application Date”), the Borrower shallshall prepay outstanding Term Loans in an aggregate principal amount equal to the ECF Percentage for the Excess Cash Flow Period then ended; provided that no such prepayment shall be required for any Excess Cash Flow Period to the extent Excess Cash Flow for such Excess Cash Flow Period was less than $10.0 million; provided, further, that the amount of such prepayment shall be further reduced (without duplication of any amount that has reduced the amount of Term Loans required to be prepaid pursuant to this clause (a) in accordance any other year) by an amount equal to the amount of Term Loans prepaid pursuant to Section 2.08 during the time period commencing at the beginning of the Excess Cash Flow Period with Subsection 4.4(grespect to which such prepayment is required and ending on the day preceding the Excess Cash Flow Application Date (in the case of a prepayment of Term Loans pursuant to Section 2.08(d), prepay limited to the Term Loans amount of cash expended), other than prepayments funded with the proceeds of the incurrence of long-term Indebtedness (other than under any revolving credit facility).
(b) On each occasion that a Prepayment Event occurs, the Borrower shall within five Business Days after the occurrence of such Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within five Business Days after the incurrence last day of any Specified Refinancing Term Loansthe Reinvestment Period relating to such Prepayment Event), the Tranche prepay, in accordance with clause (c) below, a principal amount of Term Loans being refinanced) in a Dollar Equivalent amount equal to 100.0100% of the Net Cash Proceeds from such Prepayment Event; provided that with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event or Casualty Event, the Borrower may (i) use a portion of such Net Cash Proceeds to prepay or repurchase other Indebtedness (other than Term Loans and loans and commitments under the ABL Credit Agreement or any permitted Refinancing Indebtedness in respect thereof) secured on a pari passu basis with the Obligations (and, in the case of any revolving Indebtedness, to correspondingly reduce commitments) to the extent the Borrower is required to prepay such other Indebtedness as a result of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness and the denominator of which is the sum of the outstanding principal amount of such other Indebtedness and the outstanding principal amount of Term Loans or (ii) use such Net Cash Proceeds in respect of Accounts Collateral (as such term is defined in the ABL Credit Agreement as in effect on the date hereof) to prepay Indebtedness (and correspondingly reduce commitments) under the ABL Credit Agreement or any permitted Refinancing Indebtedness in respect thereof minus to the extent the Borrower is required to repay such other Indebtedness as a result of such Prepayment Event in an amount not to exceed the Net Cash Proceeds in respect of such Accounts Collateral.
(c) The Borrower shall deliver to the Agent, at the time of each prepayment required under Section 2.09(a) or (b), (i) a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least three (3) Business Days prior written notice of such prepayment. Amounts required to be applied to the prepayment of Term Loans in accordance with clauses (a) and (b) above shall be applied pro rata to prepay Term Loans under the Term Loan Facilities and shall be applied to scheduled amortization of such Term Loans as directed by the Borrower; provided that notwithstanding the foregoing, the Borrower may elect in its sole discretion to apply the Net Cash Proceeds from any Debt Incurrence Prepayment Event to prepay any Class of Term Loans selected by the Borrower. Each notice of prepayment shall specify the prepayment date, the Type of each Term Loan being prepaid and the principal amount of each Term Loan (or portion thereof) to be prepaid. Prepayments shall be accompanied by accrued interest as required by Section 2.11. All prepayments of Borrowings under this Section 2.09 shall be subject to Section 2.14 (and, in the case of a Repricing Transaction, Section 2.08(c)), but shall otherwise be without premium or penalty.
(d) [Reserved].
(e) Notwithstanding any other provisions of this Section 2.09, (A) to the extent that any of or all the Net Cash Proceeds of any Asset Sale Prepayment Event by a Foreign Subsidiary giving rise to a prepayment pursuant to Section 2.09(b) (a “Foreign Prepayment Event”) or Excess Cash Flow attributable to a Foreign Subsidiary are prohibited or delayed by any Requirement of Law from being repatriated to the Borrower with respect to Term Loans in an aggregate principal amount equal to the ECF Percentage for the Excess Cash Flow Period then ended, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.09, as the case may be, so long, but only so long, as the applicable Requirement of Law will not permit repatriation to the Borrower (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable Requirement of Law to permit such repatriation), and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirement of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than three Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result of repatriation) to the repayment of the Term Loans pursuant to this Section 2.09, and (B) to the extent that and for so long as the Borrower or has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Foreign Prepayment Event or Excess Cash Flow would have a material adverse tax consequence to the Borrower and its Subsidiaries is (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation) with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected will not be required by to be applied to repay Term Loans at the terms thereoftimes provided in this Section 2.09; provided that when the Borrower determines in good faith that repatriation of any of or all the Net Cash Proceeds of any Foreign Prepayment Event or Excess Cash Flow would no longer have a material adverse tax consequence to the Borrower and its Subsidiaries (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation) with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to such Net Cash Proceeds or Excess Cash Flow shall be promptly (and in any event not later than three Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result of repatriation) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender repayment of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal year, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9Section 2.09.
Appears in 2 contracts
Samples: Incremental Facility Amendment (Clean Harbors Inc), Credit Agreement (Clean Harbors Inc)
Mandatory Prepayment of Term Loans. (a) No later than ten (10) Business Days after the date on which the financial statements with respect to each fiscal year of the Borrower are required to be delivered pursuant to Section 5.01(a), commencing with the fiscal year ending on December 31, 2011, the Borrower shall prepay outstanding Term Loans in an aggregate principal amount equal to (A) 50% of Excess Cash Flow for the fiscal year then ended, minus (B) the amount of any prepayments of Term Loans made pursuant to Section 2.08 during such fiscal year (other than any buybacks made pursuant to Section 9.04(h)), except to the extent that such prepayments were financed with the proceeds of other Indebtedness of the Borrower or its Subsidiaries; provided that (i) The such percentage of Excess Cash Flow shall be reduced to 25% of such Excess Cash Flow if the Leverage Ratio at the end of such fiscal year shall be equal to or less than 3.50 to 1.00, but greater than 2.50 to 1.00, and (ii) such prepayment shall not be required if the Leverage Ratio at the end of such fiscal year shall be equal to or less than 2.50 to 1.00.
(i) Not later than the third Business Day following the receipt of Net Proceeds in respect of any Asset Sale, the Borrower shall, shall apply an amount equal to 100% of the Net Proceeds received with respect thereto to prepay outstanding Term Loans in accordance with Subsection 4.4(gSection 2.09(e), provided, that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase Permitted First Priority Refinancing Debt (or any Permitted Refinancing thereof that is secured on a pari passu basis with the Obligations) pursuant to the terms of the documentation governing such Indebtedness with Net Proceeds (such Permitted First Priority Refinancing Debt (or Permitted Refinancing thereof) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such excess Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, that the portion of such excess Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such excess Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such excess Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.09(b)(i) shall be reduced accordingly; provided further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, the declined amount shall promptly (and in any event within 10 Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(ii) Not later than the third Business Day following the receipt of Net Insurance/Condemnation Proceeds in excess of $5,000,000 arising from any event or series of related events or in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% of such excess Net Insurance/Condemnation Proceeds to prepay outstanding Term Loans in accordance with Section 2.09(e), provided, that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase Other Applicable Indebtedness pursuant to the terms of the documentation governing such indebtedness with Net Insurance/Condemnation Proceeds, then the Borrower may apply such excess Net Insurance/Condemnation Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, that the portion of such excess Net Insurance/Condemnation Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such excess Net Insurance/Condemnation Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such excess Net Insurance/Condemnation Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.09(b)(ii) shall be reduced accordingly; provided further, that to the extent required by Subsection 8.4(b) the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, the declined amount shall promptly (subject to Subsection 8.4(c)), (ii) if on or and in any event within 10 Business Days after the Closing Date, Holdings date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(c) In the event that any Loan Party or any Subsidiary of its Restricted Subsidiaries a Loan Party shall Incur receive Net Proceeds from the issuance or incurrence of Indebtedness for money borrowed of any Loan Party or any Subsidiary of a Loan Party (other than any cash proceeds from the issuance of Indebtedness for money (excluding Indebtedness borrowed permitted pursuant to Subsection 8.1 Section 6.01 (other than Specified Refinancing Term Loansclause (i) of Section 6.01(z) or clause (i) of Section 6.01(aa)), the Borrower shall, substantially simultaneously with (and in accordance with Subsection 4.4(g), prepay any event not later than the Term Loans third Business Day next following) (or, in the case of Credit Agreement Refinancing Indebtedness, on the incurrence date of) the receipt of such Net Proceeds by such Loan Party or such Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay outstanding Term Loans in accordance with Section 2.09(d).
(d) Except as may otherwise be set forth in any Specified amendment contemplated by Section 2.21(c), any Refinancing Amendment or any Incremental Amendment, each prepayment of Term Loans pursuant to Section 2.09 shall be applied ratably to each Class of Term Loans then outstanding; provided, that any prepayment of Term Loans pursuant to the parenthetical in Section 2.09(c) shall be applied solely to the applicable Refinanced Debt.
(e) Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to this Section 2.09, to decline all (but not a portion) of its Pro Rata Share of or other applicable share of such prepayment (such declined amounts, the “Declined Proceeds”); provided that, for the avoidance of doubt, no Lender may reject any prepayment made with proceeds of Indebtedness permitted under clause (i) of Section 6.01(z) or clause (i) of Section 6.01(aa). With respect to each Class of Term Loans, all accepted prepayments shall be applied to the Tranche repayment of the next eight scheduled repayments of such Loans (in the case of the Term Loans being refinancedLoans, required pursuant to Section 2.07) in a Dollar Equivalent amount equal to 100.0% direct order of the Net Cash Proceeds thereof minus the portion of such Net Cash Proceeds applied (maturity and then to the extent Borrower or of any excess, ratably to the remaining scheduled repayments of its Subsidiaries is such Loans (in the case of the Term Loans, required by pursuant to Section 2.07); and each such prepayment shall be paid to the terms thereofLenders in accordance with their respective Pro Rata Share, subject to this Section 2.09(e) and with respect to prepaysuch mandatory prepayment, repay or purchase Pari Passu Indebtedness the amount of such mandatory prepayment shall be applied on a pro rata basis with to the then outstanding Loans being prepaid irrespective of whether such outstanding Loans are ABR Term Loans or Adjusted LIBO Rate Term Loans; provided that if no Lenders exercise their right to waive a given mandatory prepayment, the amount thereof shall be applied first to ABR Term Loans to the full extent thereof before application to LIBO Rate Term Loans in each case with such prepayment a manner that minimizes the amount of any payments required to be made on or before by the fifth Business Day following notice given Borrower pursuant to Section 2.14. Thereafter, the remaining Declined Proceeds may be retained by the Borrower.
(f) The Borrower shall deliver to the Administrative Agent, at the time of each Lender prepayment required under this Section 2.09, (i) a certificate signed by a Financial Officer of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) Borrower setting forth in reasonable detail the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day calculation of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal year, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness and (the amount described in this clause (A), the “ECF Prepayment Amount”ii) minus (B) the portion of such ECF Prepayment Amount applied (to the extent Borrower practicable, at least three (3) Business Days’ prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date, the Type and Class of each Term Loan being prepaid and the principal amount of each Term Loan (or any of its Subsidiaries is required by the terms portion thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above be prepaid. Prepayments shall be reduced accompanied by accrued interest as required by Section 2.11. All prepayments of Borrowings under this Section 2.09 shall be subject to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) Section 2.14, but shall limit the rights of the Agents and the Lenders set forth in Subsection 9otherwise be without premium or penalty.
Appears in 1 contract
Mandatory Prepayment of Term Loans. (a) No later than three Business Days after the earlier of (i) The Borrower shallninety (90) days after the end of each fiscal year of the Borrower, in accordance commencing with Subsection 4.4(g)the fiscal year ending on December 31, prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c))2018, and (ii) if the date on or after which the Closing Date, Holdings or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted financial statements with respect to such fiscal year are delivered pursuant to Subsection 8.1 other than Specified Refinancing Term LoansSection 5.01(a) (the “Excess Cash Flow Application Date”), the Borrower shallshall prepay outstanding Term Loans in an aggregate principal amount equal to the ECF Percentage for the Excess Cash Flow Period then ended; provided that no such prepayment shall be required for any Excess Cash Flow Period to the extent Excess Cash Flow for such Excess Cash Flow Period was less than $10.0 million; provided, further, that the amount of such prepayment shall be further reduced (without duplication of any amount that has reduced the amount of Term Loans required to be prepaid pursuant to this clause (a) in accordance any other year) by an amount equal to the amount of Term Loans prepaid pursuant to Section 2.08 during the time period commencing at the beginning of the Excess Cash Flow Period with Subsection 4.4(grespect to which such prepayment is required and ending on the day preceding the Excess Cash Flow Application Date (in the case of a prepayment of Term Loans pursuant to Section 2.08(d), prepay limited to the Term Loans amount of cash expended), other than prepayments funded with the proceeds of the incurrence of long-term Indebtedness (other than under any revolving credit facility).
(b) On each occasion that a Prepayment Event occurs, the Borrower shall within five Business Days after the occurrence of such Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within five Business Days after the incurrence last day of any Specified Refinancing Term Loansthe Reinvestment Period relating to such Prepayment Event), the Tranche prepay, in accordance with clause (c) below, a principal amount of Term Loans being refinanced) in a Dollar Equivalent amount equal to 100.0100% of the Net Cash Proceeds from such Prepayment Event; provided that with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event or Casualty Event, the Borrower may (i) use a portion of such Net Cash Proceeds to prepay or repurchase other Indebtedness (other than Term Loans and loans and commitments under the ABL Credit Agreement or any permitted Refinancing Indebtedness in respect thereof) secured on a pari passu basis with the Obligations (and, in the case of any revolving Indebtedness, to correspondingly reduce commitments) to the extent the Borrower is required to prepay such other Indebtedness as a result of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness and the denominator of which is the sum of the outstanding principal amount of such other Indebtedness and the outstanding principal amount of Term Loans or (ii) use such Net Cash Proceeds in respect of Accounts Collateral (as such term is defined in the ABL Credit Agreement as in effect on the date hereof) to prepay Indebtedness (and correspondingly reduce commitments) under the ABL Credit Agreement or any permitted Refinancing Indebtedness in respect thereof minus to the extent the Borrower is required to repay such other Indebtedness as a result of such Prepayment Event in an amount not to exceed the Net Cash Proceeds in respect of such Accounts Collateral.
(c) The Borrower shall deliver to the Agent, at the time of each prepayment required under Section 2.09(a) or (b),
(i) a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least three (3) Business Days prior written notice of such prepayment. Amounts required to be applied to the prepayment of Term Loans in accordance with clauses (a) and (b) above shall be applied pro rata to prepay Term Loans under the Term Loan Facilities and shall be applied to scheduled amortization of such Term Loans as directed by the Borrower; provided that notwithstanding the foregoing, the Borrower may elect in its sole discretion to apply the Net Cash Proceeds from any Debt Incurrence Prepayment Event to prepay any Class of Term Loans selected by the Borrower. Each notice of prepayment shall specify the prepayment date, the Type of each Term Loan being prepaid and the principal amount of each Term Loan (or portion thereof) to be prepaid. Prepayments shall be accompanied by accrued interest as required by Section 2.11. All prepayments of Borrowings under this Section 2.09 shall be subject to Section 2.14 (and, in the case of a Repricing Transaction, Section 2.08(c)), but shall otherwise be without premium or penalty.
(d) [Reserved].
(e) Notwithstanding any other provisions of this Section 2.09, (A) to the extent that any of or all the Net Cash Proceeds of any Asset Sale Prepayment Event by a Foreign Subsidiary giving rise to a prepayment pursuant to Section 2.09(b) (a “Foreign Prepayment Event”) or Excess Cash Flow attributable to a Foreign Subsidiary are prohibited or delayed by any Requirement of Law from being repatriated to the Borrower with respect to Term Loans in an aggregate principal amount equal to the ECF Percentage for the Excess Cash Flow Period then ended, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.09, as the case may be, so long, but only so long, as the applicable Requirement of Law will not permit repatriation to the Borrower (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable Requirement of Law to permit such repatriation), and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirement of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than three Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result of repatriation) to the repayment of the Term Loans pursuant to this Section 2.09, and (B) to the extent that and for so long as the Borrower or has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Foreign Prepayment Event or Excess Cash Flow would have a material adverse tax consequence to the Borrower and its Subsidiaries is (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation) with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected will not be required by to be applied to repay Term Loans at the terms thereoftimes provided in this Section 2.09; provided that when the Borrower determines in good faith that repatriation of any of or all the Net Cash Proceeds of any Foreign Prepayment Event or Excess Cash Flow would no longer have a material adverse tax consequence to the Borrower and its Subsidiaries (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation) with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to such Net Cash Proceeds or Excess Cash Flow shall be promptly (and in any event not later than three Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result of repatriation) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender repayment of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal year, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9Section 2.09.
Appears in 1 contract
Samples: Credit Agreement
Mandatory Prepayment of Term Loans. (i) The Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings the Borrower or any of its Restricted Subsidiaries shall Incur (A) Specified Refinancing Term Loans or (B) Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans8.1), the Borrower shall, in accordance with Subsection 4.4(g), prepay (or, exchange for Rollover Indebtedness) the Term Loans (or, in the case of the incurrence Incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0% of the Net Cash Proceeds thereof (plus any portion of such Indebtedness which represents Rollover Indebtedness) minus the portion of such Net Cash Proceeds applied or offered (to the extent the Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days five Business Days following the last day on which financial statements in respect of the immediately preceding Fiscal Year fiscal year are delivered pursuant to Subsection 7.1(a) (commencing with the Fiscal Year fiscal year ending on or about December 31February 3, 20162019) (or, if later, the date on which such financial statements are required to be delivered) (each, an “ECF Payment Date”), in a Dollar Equivalent an amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ the Borrower’s Excess Cash Flow for such Fiscal Year fiscal year (such amount, the “Applicable ECF Amount”), if and to the extent that the amount of such Excess Cash FlowApplicable ECF Amount exceeds $10,000,00020,000,000 , minus (2) the sum of (xtq) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a), Incremental Revolving Loans voluntarily prepaid to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction, Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, redeemed, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) or 11.6(h) (by the Borrower or its Restricted Subsidiaries) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) or 11.6(h) (by the Borrower or its Restricted Subsidiaries) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year fiscal year (which, in any event, shall not include any designated prepayment pursuant to clause (wu ) below), (ur ) the aggregate principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) repaid pursuant to Subsection 2.2 and Pari Passu Indebtedness repaid pursuant to any amortization schedule provided for in such facility, in each case during such fiscal year, (ys) the aggregate amount of cash consideration (including any expenses, charges and losses in respect the form of clause earn-out obligations and contingent consideration obligations (x) from previous fiscal years including to the extent accounted for as performance and retention bonuses, compensation or otherwise) and adjustments thereof and purchase price adjustments) paid by the Borrower and the Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including acquisitions) made during such fiscal year constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (iii) of the definition thereof and intercompany Investments by and among the Borrower and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 (which, in any event, shall not include any deemed applicationContract Consideration previously deducted pursuant to clause (z) below), (vt) the amount of such prepayment exceeded the amount of prepayments required to be Capital Expenditures either made from Holdings’ Excess Cash Flow in cash or accrued during such fiscal yearyear (provided that, whether any such Capital Expenditures shall be deducted for the fiscal year in which cash payments for such Capital Expenditures have been paid or the fiscal year in which such Capital Expenditures have been accrued shall be at the Borrower’s election; provided, further that, in each case, excluding prepayments funded with proceeds from the Incurrence no case shall any accrual of long-term Indebtedness (the amount described in a Capital Expenditure which has previously been deducted under this clause (A), 2t) give rise to a subsequent deduction upon the “ECF Prepayment Amount”) minus (B) the portion making of such ECF Prepayment Amount applied (to Capital Expenditure in cash in the extent Borrower same or any of its Subsidiaries is required by the terms thereofsubsequent fiscal year) (which, in any event, shall not include any deemed applicationCapital Expenditures previously deducted pursuant to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9.clause
Appears in 1 contract
Samples: Credit Agreement (Core & Main, Inc.)
Mandatory Prepayment of Term Loans. (i) The Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings the Borrower or any of its Restricted Subsidiaries shall Incur (A) Specified Refinancing Term Loans or (B) Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans8.1), the Borrower shall, in accordance with Subsection 4.4(g), prepay (or, exchange for Rollover Indebtedness) the Term Loans (or, in the case of the incurrence Incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0% of the Net Cash Proceeds thereof (plus any portion of such Indebtedness which represents Rollover Indebtedness) minus the portion of such Net Cash Proceeds applied or offered (to the extent the Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days five Business Days following the last day on which financial statements in respect of the immediately preceding Fiscal Year fiscal year are delivered pursuant to Subsection 7.1(a) (commencing with the Fiscal Year fiscal year ending on or about December 31February 3, 20162019) (or, if later, the date on which such financial statements are required to be delivered) (each, an “ECF Payment Date”), in a Dollar Equivalent an amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ the Borrower’s Excess Cash Flow for such Fiscal Year fiscal year (such amount, the “Applicable ECF Amount”), if and to the extent that the Applicable ECF Amount exceeds $20,000,000, minus (2) the sum of (xq) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a), Incremental Revolving Loans voluntarily prepaid to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction, Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, redeemed, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) or 11.6(h) (by the Borrower or its Restricted Subsidiaries) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) or 11.6(h) (by the Borrower or its Restricted Subsidiaries) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year fiscal year (which, in any event, shall not include any designated prepayment pursuant to clause (u) below), (r) the aggregate principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) repaid pursuant to Subsection 2.2 and Pari Passu Indebtedness repaid pursuant to any amortization schedule provided for in such facility, in each case during such fiscal year, (s) the aggregate amount of cash consideration (including any expenses, charges and losses in the form of earn-out obligations and contingent consideration obligations (including to the extent accounted for as performance and retention bonuses, compensation or otherwise) and adjustments thereof and purchase price adjustments) paid by the Borrower and the Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including acquisitions) made during such fiscal year constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (iii) of the definition thereof and intercompany Investments by and among the Borrower and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 (which, in any event, shall not include any Contract Consideration previously deducted pursuant to clause (z) below), (t) the amount of Capital Expenditures either made in cash or accrued during such fiscal year (provided that, whether any such Capital Expenditures shall be deducted for the fiscal year in which cash payments for such Capital Expenditures have been paid or the fiscal year in which such Capital Expenditures have been accrued shall be at the Borrower’s election; provided, further that, in no case shall any accrual of a Capital Expenditure which has previously been deducted under this clause (t) give rise to a subsequent deduction upon the making of such Capital Expenditure in cash in the same or any subsequent fiscal year) (which, in any event, shall not include any Capital Expenditures previously deducted pursuant to clause (z) below), (u) the aggregate principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) repaid or prepaid pursuant to Subsection 2.2(b) or 4.4(a), Incremental Revolving Loans voluntarily prepaid to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction, Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, redeemed, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) or 11.6(h) (by the Borrower or its Restricted Subsidiaries) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) or 11.6(h) (by the Borrower or its Restricted Subsidiaries) shall be limited to the actual cash amount of such prepayment), in each case during the period beginning with the day following the last day of such fiscal year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(e)(iii), (v) any ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the ABL Facility during such fiscal year (which, in any event, shall not include any designated prepayment pursuant to clause (w), (x) or (y) below), (w) the aggregate principal amount of ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the ABL Facility during the period beginning with the day following the last day of such fiscal year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(e)(iii) (which, in any event, shall not include any designated prepayment pursuant to clause (x) or (y) below), (x) the aggregate principal amount of ABL Facility Loans prepaid during such fiscal year, in each case to the extent such amounts are drawn to fund any OID or upfront fees in respect of the Tranche B Term Loans or any Incremental Term Loans and stated by the Borrower as prepaid pursuant to this Subsection 4.4(e)(iii) (which, in any event, shall not include any designated prepayment pursuant to clause (y) below), (y) the aggregate principal amount of ABL Facility Loans prepaid during the period beginning with the day following the last day of such fiscal year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(e)(iii), in each case to the extent such amounts are drawn to fund any OID or upfront fees in respect of the Tranche B Term Loans or any Incremental Term Loans and stated by the Borrower as prepaid pursuant to this Subsection 4.4(e)(iii) and (z) at the Borrower’s election, without duplication of amounts deducted from Excess Cash Flow pursuant to this Subsection 4.4(e)(iii)(A)(2) in respect of prior fiscal years, the aggregate consideration required to be paid in cash by the Borrower or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such fiscal year relating to Investments constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (xiii) from previous of the definition thereof and intercompany Investments by and among the Borrower and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 or Capital Expenditures to be consummated or made during the period of four consecutive Fiscal Quarters of the Borrower following the end of such fiscal years year, provided that to the extent the aggregate amount of cash actually utilized to finance such Investments and Capital Expenditures during such period of four consecutive Fiscal Quarters is less than the Contract Consideration, the amount of such prepayment exceeded shortfall shall be added to the amount calculation of prepayments required to be made from Holdings’ Excess Cash Flow at the end of such period of four consecutive Fiscal Quarters (provided that, except as otherwise specified herein, no prepayments made pursuant to the other clauses of this Subsection 4.4(e) shall be included in such fiscal yearSubsection 4.4(e)(iii)(A)(2)(q), (r), (s), (t), (u), (v), (w), (x), (y) or (z)), in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (unless, in the case of clause (u) or (v), such Indebtedness has been repaid) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied or offered (to the extent the Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on no more than a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year fiscal year was less than 3.40:1.003.25:1.00, after giving pro forma effect to the applicable prepayment with the Applicable ECF Amount pursuant to this Subsection 4.4(e)(iii); provided, further that, with respect to any portion of the Applicable ECF Amount in excess of the portion required to achieve, on a pro forma basis, the Consolidated Secured Leverage Ratio threshold specified in the immediately foregoing proviso, such reduced percentage shall apply. Each prepayment of Original Initial Term Loans pursuant to this Subsection 4.4(e)(ii)(A), but not any other prepayment of Original Initial Term Loans pursuant to Subsection 4.4(e) made on or prior to the 6 month anniversary of the Closing Date in an amount equal to the Net Cash Proceeds received by the Borrower or any Restricted Subsidiary from its incurrence of new Indebtedness under first lien secured bank financing in a Repricing Transaction shall be accompanied by the payment of the fee required by Subsection 4.5(b)(i). Each prepayment of Tranche B Term Loans pursuant to this Subsection 4.4(e)(ii)(A), but not any other prepayment of Tranche B Term Loans pursuant to Subsection 4.4(e) made prior to the date that is six months after the First Amendment Effective Date in an amount equal to the Net Cash Proceeds received by the Borrower or any Restricted Subsidiary from its incurrence of new Indebtedness under first lien secured bank financing in a Repricing Transaction shall be accompanied by the payment of the fee required by Subsection 4.5(b)(ii). Each prepayment of Tranche C Term Loans pursuant to this Subsection 4.4(e)(ii)(A), but not any other prepayment of Tranche C Term Loans pursuant to Subsection 4.4(e) made prior to the date that is six months after the Third Amendment Effective Date in an amount equal to the Net Cash Proceeds received by the Borrower or any Restricted Subsidiary from its incurrence of new Indebtedness under first lien secured bank financing in a Tranche C Repricing Transaction shall be accompanied by the payment of the fee required by Subsection 4.5(b)(iii). Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection Section 9.
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Samples: Credit Agreement (Core & Main, Inc.)
Mandatory Prepayment of Term Loans. (i) The Asset Sale Proceeds. No later than one hundred twenty (120) ------------------- days following any Borrower's receipt thereof, such Borrower shall, in accordance with Subsection 4.4(g), prepay shall make mandatory principal prepayments of the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case manner set forth in Section 4.4(b)(v) below in amounts equal to one hundred percent (100%) of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent amount equal to 100.0% of the aggregate Net Cash Proceeds thereof minus in excess of $2,500,000 in the portion aggregate from the sale or other disposition or series of such Net Cash Proceeds applied (to the extent related sales or other dispositions of assets by any Borrower or any of its Subsidiaries is pursuant to Section 11.6(e) ("Asset Sale Proceeds"); provided that such prepayment shall not be required to -------- the extent that such Net Cash Proceeds are reinvested in comparable replacement assets within one hundred twenty (120) days of any such transaction. Such prepayment shall be made within one hundred twenty (120) days after the date of consummation of any such transaction. Notwithstanding any of the foregoing to the contrary, upon and during the continuance of an Event of Default and upon notice from the Administrative Agent, all Asset Sale Proceeds received by the terms thereof) Borrowers and their Subsidiaries shall be applied to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with make prepayments of the Term Loans, in each case with such prepayment prepayments to be made on or before within three (3) Business Days after the fifth Business Day following notice given to each Lender date of the Prepayment Date, as contemplated by Subsection 4.4(hreceipt of Asset Sale Proceeds.
(ii) and Insurance Proceeds. No later than one hundred twenty (iii120) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 ------------------ days following the last day date of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and receipt by any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal year, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent Borrower or any of its Subsidiaries is of any Net Cash Proceeds in excess of $2,500,000 in the aggregate under any of the insurance policies maintained pursuant to Section 4(a)(vi) of the Security Agreement ("Insurance Proceeds") which have not been reinvested as of such date to replace or restore the damaged property to which such Net Cash Proceeds relate, such Borrower shall make mandatory principal prepayments of the Term Loans in the manner set forth in Section 4.4(b)(v) below in amounts equal to one hundred percent (100%) of the aggregate amount of such Insurance Proceeds (as required in accordance in accordance with Section 4(a)(vi) of the Security Agreement). Such prepayment shall be made within one hundred twenty (120) days after the date of receipt of such Net Cash Proceeds. Notwithstanding any of the foregoing to the contrary, upon and during the continuance of an Event of Default and upon notice from the Administrative Agent, all Insurance Proceeds received by the terms thereof) Borrowers and their Subsidiaries shall be applied to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with make prepayments of the Term Loans; provided that , such percentage in clause prepayments to be made within three (13) above shall be reduced to 0% if Business Days after the Consolidated Secured Leverage Ratio as date of the last day receipt of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9Insurance Proceeds.
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Mandatory Prepayment of Term Loans. (i) The Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings the Parent Borrower or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion of such Net Cash Proceeds applied (to the extent the Parent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) ), and (iii) the Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the first Fiscal Year ending on or about December 31, 2016commencing after the Closing Date) (each, an “ECF Payment Date”), in a Dollar Equivalent an amount equal to (A) (1A)(1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ the Parent Borrower’s Excess Cash Flow for such Fiscal Year minus (2) the sum of (xs) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) prepaid pursuant to Subsection 4.4(a), Incremental Revolving Loans voluntarily prepaid to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction and Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (w) below), (u) the aggregate amount of cash consideration (including any expenses, charges and losses in the form of earn-out obligations and contingent consideration obligations (including to the extent accounted for as performance and retention bonuses, compensation or otherwise) and adjustments thereof and purchase price adjustments) paid by the Parent Borrower and the Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including acquisitions) made during such Fiscal Year constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (iii) of the definition thereof and intercompany Investments by and among the Parent Borrower and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 (which, in any event, shall not include any deemed application pursuant to clause (z) below), (v) the amount of Capital Expenditures either made in cash or accrued during such Fiscal Year (provided that, whether any such Capital Expenditures shall be deducted for the Fiscal Year in which cash payments for such Capital Expenditures have been paid or the Fiscal Year in which such Capital Expenditures have been accrued shall be at the Borrower Representative’s election; provided, further that, in no case shall any accrual of a Capital Expenditure which has previously been deducted under this clause (2) give rise to a subsequent deduction upon the making of such Capital Expenditure in cash in the same or any subsequent Fiscal Year) (which, in any event, shall not include any deemed application pursuant to clause (z) below), (w) the aggregate principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) prepaid pursuant to Subsection 4.4(a), Incremental Revolving Loans voluntarily prepaid to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction and Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment), in each case during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower Representative as prepaid pursuant to this Subsection 4.4(e)(iii) (provided that no prepayments made pursuant to the other clauses of this Subsection 4.4(e) shall be included in Subsections 4.4(e)(iii)(A)(2)(w) or (x)), (x) any ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Senior ABL Facility during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (y) below), (y) the aggregate principal amount of ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Senior ABL Facility during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower Representative as prepaid pursuant to this Subsection 4.4(e)(iii) and (z) at the Borrower Representative’s election, without duplication of amounts deducted from Excess Cash Flow pursuant to this Subsection 4.4(e)(iii)(2) in respect of prior Fiscal Years, the aggregate consideration required to be paid in cash by the Parent Borrower or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such Fiscal Year relating to Investments constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (xiii) from previous of the definition thereof and intercompany Investments by and among the Parent Borrower and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 or Capital Expenditures to be consummated or made during the period of four consecutive fiscal years quarters of the Parent Borrower following the end of such Fiscal Year, provided that to the extent the aggregate amount of cash actually utilized to finance such Investments and Capital Expenditures during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such prepayment exceeded shortfall shall be added to the amount calculation of prepayments required to be made from Holdings’ Excess Cash Flow in at the end of such period of four consecutive fiscal yearquarters, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (including a revolving credit facility) (unless, in the case of clause (v), such Indebtedness has been repaid) (the amount described in this clause (A), the “ECF Prepayment Payment Amount”) minus (B) the portion of such ECF Prepayment Payment Amount applied (to the extent Parent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans; provided that (x) such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured First Lien Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.003.00:1.00 and (y) the Borrowers shall only be required to make any payment described in clause (iii) to the extent that the ECF Payment Amount determined in accordance with clauses (1) and (2) of clause (iii)(A) exceeds $15,000,000, and in such case the ECF Payment Amount shall be the amount in excess of $15,000,000. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection Section 9.
Appears in 1 contract
Mandatory Prepayment of Term Loans. (i) The Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings the Parent Borrower or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion of such Net Cash Proceeds applied (to the extent the Parent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) ), and (iii) the Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the first Fiscal Year ending on or about December 31, 2016commencing after the Closing Date) (each, an “ECF Payment Date”), in a Dollar Equivalent an amount equal to (A) (1A)(1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ the OpCo Borrower’s Excess Cash Flow for such Fiscal Year minus (2) the sum of (xw) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness and to the extent such voluntary prepayments are offered on a no less than ratable basis to holders of Initial Term Loans) prepaid pursuant to Subsection 4.4(a), Incremental Revolving Loans voluntarily prepaid to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction and Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness and to the extent such voluntary prepayments are offered on a no less than ratable basis to holders of Initial Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount which, in respect of any event, shall not include any designated prepayment pursuant to clause (x) from previous fiscal years below), (x) the aggregate principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness and to the extent such voluntary prepayments are offered on a no less than ratable basis to holders of Initial Term Loans) prepaid pursuant to Subsection 4.4(a), Incremental Revolving Loans voluntarily prepaid to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction and Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness and to the extent such voluntary prepayments are offered on a no less than ratable basis to holders of Initial Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment), in each case during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower Representative as prepaid pursuant to this Subsection 4.4(e)(iii) (provided that no prepayments made pursuant to the other clauses of this Subsection 4.4(e) shall be included in Subsections 4.4(e)(iii)(A)(2)(w) or (x)), (y) any ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the ABL Facility during such Fiscal Year (which, in any event, shall not include any designated prepayment exceeded pursuant to clause (z) below), and (z) the aggregate principal amount of prepayments required ABL Facility Loans prepaid to be made from Holdings’ Excess Cash Flow in the extent accompanied by a corresponding permanent commitment reduction under the ABL Facility during the period beginning with the day following the last day of such fiscal yearFiscal Year and ending on the ECF Payment Date and stated by the Borrower Representative as prepaid pursuant to this Subsection 4.4(e)(iii), in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (including a revolving credit facility) (the amount described in this clause (A), the “ECF Prepayment Payment Amount”) minus (B) the portion of such ECF Prepayment Payment Amount applied (to the extent Parent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.002.50:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection Section 9.
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Mandatory Prepayment of Term Loans. (i) The Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings the Borrower or any of its Restricted Subsidiaries shall Incur (A) Specified Refinancing Term Loans or (B) Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans8.1), the Borrower shall, in accordance with Subsection 4.4(g), prepay (or, exchange for Rollover Indebtedness) the Term Loans (or, in the case of the incurrence Incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0% of the Net Cash Proceeds thereof (plus any portion of such Indebtedness which represents Rollover Indebtedness) minus the portion of such Net Cash Proceeds applied or offered (to the extent the Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days five Business Days following the last day on which financial statements in respect of the immediately preceding Fiscal Year fiscal year are delivered pursuant to Subsection 7.1(a) (commencing with the Fiscal Year fiscal year ending on or about December 31February 3, 20162019) (or, if later, the date on which such financial statements are required to be delivered) (each, an “ECF Payment Date”), in a Dollar Equivalent an amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ the Borrower’s Excess Cash Flow for such Fiscal Year fiscal year (such amount, the “Applicable ECF Amount”), if and to the extent that the Applicable ECF Amount exceeds $20,000,000, minus (2) the sum of (xq) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a), Incremental Revolving Loans voluntarily prepaid to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction, Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, redeemed, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) or 11.6(h) (by the Borrower or its Restricted Subsidiaries) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) or 11.6(h) (by the Borrower or its Restricted Subsidiaries) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year fiscal year (which, in any event, shall not include any designated prepayment pursuant to clause (u) below), (r) the aggregate principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) repaid pursuant to Subsection 2.2 and Pari Passu Indebtedness repaid pursuant to any amortization schedule provided for in such facility, in each case during such fiscal year, (s) the aggregate amount of cash consideration (including any expenses, charges and losses in the form of earn-out obligations and contingent consideration obligations (including to the extent accounted for as performance and retention bonuses, compensation or otherwise) and adjustments thereof and purchase price adjustments) paid by the Borrower and the Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including acquisitions) made during such fiscal year constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (iii) of the definition thereof and intercompany Investments by and among the Borrower and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 (which, in any event, shall not include any Contract Consideration previously deducted pursuant to clause (z) below), (t) the amount of Capital Expenditures either made in cash or accrued during such fiscal year (provided that, whether any such Capital Expenditures shall be deducted for the fiscal year in which cash payments for such Capital Expenditures have been paid or the fiscal year in which such Capital Expenditures have been accrued shall be at the Borrower’s election; provided, further that, in no case shall any accrual of a Capital Expenditure which has previously been deducted under this clause (t) give rise to a subsequent deduction upon the making of such Capital Expenditure in cash in the same or any subsequent fiscal year) (which, in any event, shall not include any Capital Expenditures previously deducted pursuant to clause (z) below), (u) the aggregate principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) repaid or prepaid pursuant to Subsection 2.2(b) or 4.4(a), Incremental Revolving Loans voluntarily prepaid to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction, Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, redeemed, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) or 11.6(h) (by the Borrower or its Restricted Subsidiaries) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) or 11.6(h) (by the Borrower or its Restricted Subsidiaries) shall be limited to the actual cash amount of such prepayment), in each case during the period beginning with the day following the last day of such fiscal year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(e)(iii), (v) any ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the ABL Facility during such fiscal year (which, in any event, shall not include any designated prepayment pursuant to clause (w), (x) or (y) below), (w) the aggregate principal amount of ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the ABL Facility during the period beginning with the day following the last day of such fiscal year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(e)(iii) (which, in any event, shall not include any designated prepayment pursuant to clause (x) or (y) below), (x) the aggregate principal amount of ABL Facility Loans prepaid during such fiscal year, in each case to the extent such amounts are drawn to fund any OID or upfront fees in respect of the Tranche B Term Loans or any Incremental Term Loans and stated by the Borrower as prepaid pursuant to this Subsection 4.4(e)(iii) (which, in any event, shall not include any designated prepayment pursuant to clause (y) below), (y) the aggregate principal amount of ABL Facility Loans prepaid during the period beginning with the day following the last day of such fiscal year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(e)(iii), in each case to the extent such amounts are drawn to fund any OID or upfront fees in respect of the Tranche B Term Loans or any Incremental Term Loans and stated by the Borrower as prepaid pursuant to this Subsection 4.4(e)(iii) and (z) at the Borrower’s election, without duplication of amounts deducted from Excess Cash Flow pursuant to this Subsection 4.4(e)(iii)(A)(2) in respect of prior fiscal years, the aggregate consideration required to be paid in cash by the Borrower or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such fiscal year relating to Investments constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (xiii) from previous of the definition thereof and intercompany Investments by and among the Borrower and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 or Capital Expenditures to be consummated or made during the period of four consecutive Fiscal Quarters of the Borrower following the end of such fiscal years year, provided that to the extent the aggregate amount of cash actually utilized to finance such Investments and Capital Expenditures during such period of four consecutive Fiscal Quarters is less than the Contract Consideration, the amount of such prepayment exceeded shortfall shall be added to the amount calculation of prepayments required to be made from Holdings’ Excess Cash Flow at the end of such period of four consecutive Fiscal Quarters (provided that, except as otherwise specified herein, no prepayments made pursuant to the other clauses of this Subsection 4.4(e) shall be included in such fiscal yearSubsection 4.4(e)(iii)(A)(2)(q), (r), (s), (t), (u), (v), (w), (x), (y) or (z)), in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (unless, in the case of clause (u) or (v), such Indebtedness has been repaid) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied or offered (to the extent the Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on no more than a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year fiscal year was less than 3.40:1.003.25:1.00, after giving pro forma effect to the applicable prepayment with the Applicable ECF Amount pursuant to this Subsection 4.4(e)(iii); provided, further that, with respect to any portion of the Applicable ECF Amount in excess of the portion required to achieve, on a pro forma basis, the Consolidated Secured Leverage Ratio threshold specified in the immediately foregoing proviso, such reduced percentage shall apply. Each prepayment of Original Initial Term Loans pursuant to this Subsection 4.4(e)(ii)(A), but not any other prepayment of Original Initial Term Loans pursuant to Subsection 4.4(e) made on or prior to the 6 month anniversary of the Closing Date in an amount equal to the Net Cash Proceeds received by the Borrower or any Restricted Subsidiary from its incurrence of new Indebtedness under first lien secured bank financing in a Repricing Transaction shall be accompanied by the payment of the fee required by Subsection 4.5(b)(i). Each prepayment of Tranche B Term Loans pursuant to this Subsection 4.4(e)(ii)(A), but not any other prepayment of Tranche B Term Loans pursuant to Subsection 4.4(e) made prior to the date that is six months after the First Amendment Effective Date in an amount equal to the Net Cash Proceeds received by the Borrower or any Restricted Subsidiary from its incurrence of new Indebtedness under first lien secured bank financing in a Repricing Transaction shall be accompanied by the payment of the fee required by Subsection 4.5(b)(ii). Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection Section 9.
Appears in 1 contract
Samples: Credit Agreement (Core & Main, Inc.)
Mandatory Prepayment of Term Loans. (ia) The Borrower shallOn and after the Acquisition Closing Date, if any Indebtedness shall be issued or incurred by the Company or any Restricted Subsidiary (excluding any Indebtedness incurred in accordance with Subsection 4.4(gSection 6.18), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0100% of the Net Cash Proceeds thereof minus shall be applied on the portion date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in Section 2.6.9.
(b) On and after the Acquisition Closing Date, if the Company or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale Prepayment Event or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, 100% of such Net Cash Proceeds shall be applied (on or prior to the extent Borrower fifth Business Day after such receipt (or any in the case of its Subsidiaries is an Asset Sale Prepayment Event or Recovery Event in an amount less than $75,000,000, on or prior to the date five Business Days after the date the financial statements for the fiscal quarter in which such event occurred are required by to be delivered pursuant to Section 6.01(i) or (ii)), toward the terms thereof) prepayment of the Term Loans as set forth in Section 2.6.9; provided that, notwithstanding the foregoing, no later than each Reinvestment Prepayment Date, an amount equal to prepaythe Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 2.6.9. Notwithstanding the foregoing, repay or purchase Pari Passu Indebtedness if, on a pro rata basis Pro Forma Basis after giving effect to any Asset Sale Prepayment Event or Recovery Event the Company’s Total Net Leverage Ratio is less than 2.50 to 1.00, the Net Cash Proceeds from such Asset Sale Prepayment Event or Recovery Event shall not be subject to the prepayment requirements of this clause (b).
(c) On and after the Acquisition Closing Date, if, for any fiscal year of the Company commencing with the first full fiscal year ending after the Acquisition Closing Date, there shall be Excess Cash Flow, the Company shall, on the relevant Excess Cash Flow Application Date (as defined below), apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans, Loans as set forth in each case Section 2.6.9. Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five Business Days after the date on which the financial statements of the Borrower referred to in Section 6.1(i) for the fiscal year with respect to which such prepayment to be made on or before the fifth Business Day following notice given are required to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant delivered to the last proviso of this clause Lenders; provided that (iii)i) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount any voluntary 509265-1946-Active.21307007.121307007.7 prepayments of Term Loans (including Incremental Term Loansduring such fiscal year, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments funded with respect thereto are permanently reduced), in each case internally generated cash and (ii) voluntary prepayments made on the Revolving Credit Loans during such Fiscal Year and (y) fiscal year that were accompanied by an equal permanent reduction of the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal yearRevolving Credit Commitments, in each case, excluding shall be credited against the Company’s obligation to make prepayments funded with proceeds from the Incurrence under this Section 2.6.5(c) for such fiscal year on a dollar-for-dollar basis. Prepayments from, and, without duplication, of long-term Indebtedness (the amount described in this clause (A)amounts equal to, the “ECF Net Cash Proceeds of any Asset Sale Prepayment Amount”) minus (B) the portion Event or Recovery Event or Excess Cash Flow by or of such ECF Prepayment Amount applied a Foreign Subsidiary (to the extent Borrower otherwise required) will be limited to the extent (x) the repatriation of Foreign Subsidiaries’ funds to fund such prepayments is prohibited, restricted or delayed by applicable laws, (y) repatriation of Foreign Subsidiaries’ funds to fund such prepayment could reasonably be expected to result in adverse tax consequences to the Company and its Restricted Subsidiaries or (z) such funds originate at the Target or its Subsidiaries prior to the Domination Agreement Effective Date. All mandatory prepayments are subject to permissibility under (a) in the case of Foreign Subsidiaries, local law restrictions (such as restrictions relating to financial assistance, corporate benefit, restrictions on upstreaming of cash intra-group and the fiduciary and statutory duties of the directors of the relevant Restricted Subsidiaries) and (b) with respect to non-Wholly Owned Restricted Subsidiaries, organizational document restrictions, to the extent not created in contemplation of such prepayments. The non-application of any such mandatory prepayment amounts in compliance with the foregoing provisions of this paragraph will not constitute an Unmatured Default or Default and such amounts shall be available for working capital purposes of the Company and its Restricted Subsidiaries. The Company will undertake to use commercially reasonable efforts to overcome or eliminate any such restrictions and/or minimize any such costs of prepayment (subject to the considerations above) to make the relevant payment, other than, for the avoidance of doubt, to the extent resulting from asset sales or operations of the Target and its Restricted Subsidiaries prior to the Domination Agreement Effective Date. Notwithstanding the foregoing, any prepayments made after application of the above provisions shall be net of any costs, expenses or taxes incurred by the Company and its Restricted Subsidiaries or any of its Subsidiaries is required by the terms thereof) to prepay, repay Affiliates or purchase Pari Passu Indebtedness on equity partners and arising as a pro rata basis result of compliance with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9paragraph.
Appears in 1 contract
Mandatory Prepayment of Term Loans. (i) The Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings the Borrower or any of its Restricted Subsidiaries shall Incur (A) Specified Refinancing Term Loans or (B) Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans8.1), the Borrower shall, in accordance with Subsection 4.4(g), prepay (or, exchange for Rollover Indebtedness) the Term Loans (or, in the case of the incurrence Incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0% of the Net Cash Proceeds thereof (plus any portion of such Indebtedness which represents Rollover Indebtedness) minus the portion of such Net Cash Proceeds applied or offered (to the extent the Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days five Business Days following the last day on which financial statements in respect of the immediately preceding Fiscal Year fiscal year are delivered pursuant to Subsection 7.1(a) (commencing with the Fiscal Year fiscal year ending on or about December 31February 3, 20162019) (each, an “ECF Payment Date”), in a Dollar Equivalent an amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ the Borrower’s Excess Cash Flow for such Fiscal Year fiscal year, if and to the extent that the amount of such Excess Cash Flow exceeds $10,000,000, minus (2) the sum of (xt) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a), Incremental Revolving Loans voluntarily prepaid to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction, Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) or 11.6(h) (by the Borrower or its Restricted Subsidiaries) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) or 11.6(h) (by the Borrower or its Restricted Subsidiaries) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year fiscal year (which, in any event, shall not include any designated prepayment pursuant to clause (w) below), (u) the aggregate amount of cash consideration (including any expenses, charges and losses in the form of earn-out obligations and contingent consideration obligations (including to the extent accounted for as performance and retention bonuses, compensation or otherwise) and adjustments thereof and purchase price adjustments) paid by the Borrower and the Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including acquisitions) made during such fiscal year constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (iii) of the definition thereof and intercompany Investments by and among the Borrower and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 (which, in any event, shall not include any deemed application pursuant to clause (z) below), (v) the amount of Capital Expenditures either made in cash or accrued during such fiscal year (provided that, whether any such Capital Expenditures shall be deducted for the fiscal year in which cash payments for such Capital Expenditures have been paid or the fiscal year in which such Capital Expenditures have been accrued shall be at the Borrower’s election; provided, further that, in no case shall any accrual of a Capital Expenditure which has previously been deducted under this clause (2) give rise to a subsequent deduction upon the making of such Capital Expenditure in cash in the same or any subsequent fiscal year) (which, in any event, shall not include any deemed application pursuant to clause (z) below), (w) the aggregate principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a), Incremental Revolving Loans voluntarily prepaid to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction, Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) or 11.6(h) (by the Borrower or its Restricted Subsidiaries) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) or 11.6(h) (by the Borrower or its Restricted Subsidiaries) shall be limited to the actual cash amount of such prepayment), in each case during the period beginning with the day following the last day of such fiscal year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(e)(iii), (x) any ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the ABL Facility during such fiscal year (which, in any event, shall not include any designated prepayment pursuant to clause (y) below), (y) the aggregate principal amount of ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the ABL Facility during the period beginning with the day following the last day of such fiscal year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(e)(iii) and (z) at the Borrower’s election, without duplication of amounts deducted from Excess Cash Flow pursuant to this Subsection 4.4(e)(iii)(2) in respect of prior fiscal years, the aggregate consideration required to be paid in cash by the Borrower or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such fiscal year relating to Investments constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (xiii) from previous of the definition thereof and intercompany Investments by and among the Borrower and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 or Capital Expenditures to be consummated or made during the period of four consecutive Fiscal Quarters of the Borrower following the end of such fiscal years year, provided that to the extent the aggregate amount of cash actually utilized to finance such Investments and Capital Expenditures during such period of four consecutive Fiscal Quarters is less than the Contract Consideration, the amount of such prepayment exceeded shortfall shall be added to the amount calculation of prepayments required to be made from Holdings’ Excess Cash Flow at the end of such period of four consecutive Fiscal Quarters (provided that no prepayments made pursuant to the other clauses of this Subsection 4.4(e) shall be included in such fiscal yearSubsection 4.4(e)(iii)(A)(2)(t), (u), (v), (w), (x), (y) or (z)), in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (unless, in the case of clause (v), such Indebtedness has been repaid) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied or offered (to the extent the Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on no more than a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year fiscal year was less than 3.40:1.004.25:1.00. Each prepayment of Initial Term Loans pursuant to this Subsection 4.4(e)(ii)(A), but not any other prepayment of Initial Term Loans pursuant to Subsection 4.4(e) made on or prior to the 6 month anniversary of the Closing Date in an amount equal to the Net Cash Proceeds received by the Borrower or any Restricted Subsidiary from its incurrence of new Indebtedness under first lien secured bank financing in a Repricing Transaction shall be accompanied by the payment of the fee required by Subsection 4.5(b). Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection Section 9.
Appears in 1 contract
Mandatory Prepayment of Term Loans. (i) The Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by in accordance with Subsection 8.4(b) (subject to Subsection 8.4(c))) and to the extent required thereby, (ii) if on or after the Closing Date, Holdings the Parent Borrower or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans or Specified Refinancing Acquisition / Capex Loans), the Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans or Specified Refinancing Acquisition / Capex Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion of such Net Cash Proceeds applied (to the extent the Parent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) ), and (iii) the Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 20162015) (each, an “ECF Payment Date”), in a Dollar Equivalent an amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ the Parent Borrower’s Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount of Term Loans (including Acquisition / Capex Loans, Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a), Revolving Loans (including Incremental Revolving Loans, Extended Revolving Loans and Specified Refinancing Revolving Loans) prepaid pursuant to Subsection 4.4(b) to the extent accompanied by a corresponding permanent Revolving Commitment reduction, Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Acquisition / Capex Loans, Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (y) below) and (y) the aggregate principal amount in respect of clause Term Loans (xincluding Acquisition / Capex Loans, Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) from previous fiscal years prepaid pursuant to Subsection 4.4(a), Revolving Loans (including Incremental Revolving Loans, Extended Revolving Loans and Specified Refinancing Revolving Loans) prepaid pursuant to Subsection 4.4(b) to the extent accompanied by a corresponding permanent Revolving Commitment reduction, Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Acquisition / Capex Loans, Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment exceeded prepayment), in each case during the amount period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower Representative as prepaid pursuant to this Subsection 4.4(e)(iii) (provided that no prepayments required made pursuant to the other clauses of this Subsection 4.4(e) shall be made from Holdings’ Excess Cash Flow included in such fiscal yearSubsections 4.4(e)(iii)(A)(2)(x) or (y)), in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (the amount described in this clause (A), as may be adjusted pursuant to clause (y) of the last proviso of this clause (iii), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Parent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on no more than a pro rata basis with the Term Loans; provided that (x) such percentage in clause (1iii)(A)(1) above shall be reduced to 0% if the Consolidated Secured First Lien Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.003.50:1.00 and (y) the Borrowers shall only be required to make any payment described in clause (iii) to the extent that the ECF Prepayment Amount determined in accordance with clauses (1) and (2) of clause (iii)(A) exceeds €15,000,000, and in such case the ECF Prepayment Amount shall be the amount in excess of €15,000,000. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection Section 9.
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Mandatory Prepayment of Term Loans. (ia) The Annually, within 30 days after delivery of the Parent's audited financial statements for each Fiscal Year, the US Borrower shallshall prepay the Amortizing Loans, or shall cause the CA Borrower to prepay the CA Term Loan, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an aggregate principal amount equal to 100.025% of the Net Cash Proceeds thereof minus the portion of such Net Cash Proceeds applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) Year. Such payments shall be limited to the actual cash amount of such prepaymentdue (i) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments in calendar year 2017 with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal year, determined for the 2016 Fiscal Year; and (ii) in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% subsequent year if the Consolidated Secured Total Leverage Ratio determined as of the last day of the immediately preceding Fiscal Year was less then most recently ended is greater than 3.40:1.00. Nothing 2.00:1.00.
(b) Subject to clauses (d) and (e) hereof, immediately upon receipt by any Credit Party of any Net Cash Proceeds from any Asset Sales which result in this Subsection 4.4(ereceipt of Net Cash Proceeds in excess of Two Hundred Fifty Thousand Dollars ($250,000.00) which are not Reinvested as described in the following sentence, US Borrower shall limit prepay the rights Amortizing Loans, or shall cause the CA Borrower to prepay the CA Term Loan, in an aggregate amount equal to one hundred percent (100%) of such Net Cash Proceeds provided, however that Borrowers shall not be obligated to prepay the Amortizing Loans with such Net Cash Proceeds if the following conditions are satisfied: (i) promptly following the sale, Borrowers provide to Agent a certificate executed by a Responsible Officer of the Agents Borrowers (“Reinvestment Certificate”) stating (x) that the sale has occurred, (y) that no Default or Event of Default has occurred and is continuing either as of the date of the sale or as of the date of the Reinvestment Certificate, and (z) a description of the planned Reinvestment of the proceeds thereof, (ii) the Reinvestment of such Net Cash Proceeds is completed within the Reinvestment Period, and (iii) no Default or Event of Default has occurred and is continuing at the time of the sale and at the time of the application of such proceeds to Reinvestment. If any such proceeds have not been Reinvested at the end of the Reinvestment Period, Borrower shall promptly pay such proceeds to Agent, to be applied to repay the Amortizing Loans in accordance with clauses (d) and (e) hereof.
(c) Subject to clauses (d) and (e) hereof, immediately upon receipt by any Credit Party of any insurance proceeds or condemnation proceeds, US Borrower shall be obligated to prepay the Amortizing Loans, or shall cause the CA Borrower to prepay the CA Term Loan, in an aggregate by an amount equal to one hundred percent (100%) of such insurance proceeds or condemnation proceeds, as the case may be; provided, however, that any insurance proceeds or condemnation proceeds, as the case may be, may be Reinvested by the applicable Credit Party if the following conditions are satisfied: (i) promptly following the receipt of such insurance proceeds or condemnation proceeds, as the case may be, Borrowers provide to Agent a Reinvestment Certificate stating (x) that no Default or Event of Default has occurred and is continuing either as of the date of the receipt of such proceeds or as of the date of the Reinvestment Certificate, (y) that such insurance proceeds or condemnation proceeds have been received, and (z) a description of the planned Reinvestment thereof, (ii) the Reinvestment of such proceeds is completed within the Reinvestment Period, and (iii) no Default or Event of Default shall have occurred and be continuing at the time of the receipt of such proceeds and at the time of the application of such proceeds to Reinvestment. If any such proceeds have not been Reinvested at the end of the Reinvestment Period, Borrower shall promptly pay such proceeds to Agent, to be applied to repay the Amortizing Loans in accordance with clauses (d) and (e) hereof.
(d) Each mandatory prepayment under this Section 3.9 or any other mandatory or optional prepayment under this Agreement shall be in addition to any scheduled installments or optional prepayments made prior thereto. Mandatory prepayments required under this Section shall be applied first to the US Term Loan (and to installments thereon on the inverse order of maturity), until the US Term Loan is paid in full, and thereafter to CA Term Loan and/or any Incremental Term Loan, in such order as Agent shall elect.
(e) To the extent that, on the date any mandatory prepayment of any Amortizing Loan under this Section 3.9 is due, the Indebtedness under any Amortizing Loan or any other Indebtedness to be prepaid is being carried, in whole or in part, at the Eurodollar-based Rate and no Default or Event of Default has occurred and is continuing, Borrowers may deposit the amount of such mandatory prepayment in a cash collateral account to be held by the Agent, for and on behalf of the Lenders set forth (which shall be an interest-bearing account), on such terms and conditions as are reasonably acceptable to Agent and upon such deposit, the obligation of each Borrower to make such mandatory prepayment shall be deemed satisfied. Subject to the terms and conditions of said cash collateral account, sums on deposit in Subsection 9said cash collateral account shall be applied (until exhausted) to reduce the principal balance of such Amortizing Loan(s) on the last day of each Eurodollar-Interest Period attributable to the Eurodollar-based Advances of the such Amortizing Loan(s), thereby avoiding breakage costs under Section 10.1.
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Mandatory Prepayment of Term Loans. (ia) The Within five (5) Business Days of either Borrower shall, in accordance or its Restricted Subsidiaries receiving any Net Proceeds from the issuance or incurrence of any Indebtedness of the Borrowers or any of their Restricted Subsidiaries (other than with Subsection 4.4(grespect to any Indebtedness permitted to be incurred pursuant to Section 6.02), the Borrowers shall prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an aggregate amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion Term Loan Facility Ratable Share of such Net Cash Proceeds applied Proceeds.
(to b) No later than ten (10) Business Days following the extent Borrower date of receipt by Parent or any of its Subsidiaries is required by of any Net Proceeds in respect of any Recovery Event (in each case, in respect of Collateral) which Net Proceeds, together with the terms thereofaggregate amount of Net Proceeds previously received from Recovery Events, are in excess of $10.0 million (the “Threshold Amount”, and all such Net Proceeds in excess of the Threshold Amount, “Excess Proceeds”), the Borrowers shall (i) give written notice to prepaythe Administrative Agent of such Recovery Event and (ii) offer to prepay the Term Loans in an aggregate amount equal to the Term Loan Facility Ratable Share of such Excess Proceeds in respect of such Recovery Event no later than the tenth (10th) Business Day following the date of receipt of such Net Proceeds; provided that so long as no Event of Default shall have occurred and be continuing at the time of receipt of such Net Proceeds, repay the Borrowers shall have the option to (x) invest such Net Proceeds within 365 days of receipt thereof in Qualified Replacement Assets or purchase Pari Passu Indebtedness on a pro rata basis (y) repair, replace or restore the assets which are the subject of such Recovery Event; provided that (I) any Net Proceeds from such Recovery Event that are not invested within such 365- day period, together with any Net Proceeds that constitute Excess Proceeds, will constitute Excess Proceeds and (II) within ten (10) Business Days of the date of receipt of such Excess Proceeds (or earlier if the Borrowers so elect), the Borrowers shall prepay the Term Loans, in each case with an aggregate amount equal to the Term Loan Facility Ratable Share of such Excess Proceeds. Any Lender may elect, by notice to the Administrative Agent at least two Business Days prior to the prepayment date, to be made on or before the fifth Business Day following notice given to each Lender decline all (but not less than all) of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the prepayment of any Class of its Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”pursuant to this Section 2.12(b), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each which case during such Fiscal Year and (y) the aggregate amount in respect of clause the prepayment that would have been applied to prepay such Term Loans but was so declined shall be retained by the Borrowers.
(xc) from previous fiscal years to the extent the amount Within ten (10) Business Days of such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal year, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent Borrower Parent or any of its Subsidiaries is required receiving any Net Proceeds as a result of any Contingent Payment Event under a MileagePlus Agreement, an IP Agreement or an Intercompany Agreement which Net Proceeds, together with the aggregate amount of Net Proceeds previously received from Contingent Payment Events, are in excess of $50.0 million, the Borrowers shall offer to prepay the Term Loans, in an aggregate amount equal to the Term Loan Facility Ratable Share of such Net Proceeds. Any Lender may elect, by notice to the Administrative Agent at least two Business Days prior to the prepayment date, to decline all (but not less than all) of the prepayment of any Class of its Term Loans pursuant to this Section 2.12(c), in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be retained by the terms thereofBorrowers.
(d) Within ten (10) Business Days of Parent or any of its Subsidiaries receiving any Net Proceeds of a Permitted Pre-paid Miles Purchase which Net Proceeds, together with the aggregate amount of Net Proceeds previously received from Permitted Pre-paid Miles Purchases, are in excess of $300.0 million, the Borrowers shall prepay the Term Loans, in an aggregate amount equal to prepaythe Term Loan Facility Ratable Share of such excess Net Proceeds.
(e) Within five (5) Business Days following the occurrence of a Parent Change of Control, repay or the Borrowers shall offer to prepay all of each Lender’s Term Loans at a purchase Pari Passu Indebtedness price in cash equal to 101% of the aggregate principal amount of the Term Loans repaid. The repayment date shall be no later than thirty (30) days from the date such offer is made. Any Lender may elect, by notice to the Administrative Agent at least two (2) Business Days prior to the prepayment date, to decline all (but not less than all) of the prepayment of any Class of its Term Loans pursuant to this Section 2.12(e).
(f) Amounts required to be applied to the prepayment of Term Loans pursuant to Section 2.12(a) through (e) shall be applied to prepay the scheduled amortization payments of the Term Loans on a pro rata basis basis. To the extent that such amounts are not applied on a Payment Date pursuant to Section 2.10(b), the Borrowers shall provide the Collateral Administrator with payment instructions setting forth the applicable amounts and payees in respect thereof. All prepayments under Section 2.12 shall be accompanied (inclusive of all Premiums owed on account of any such prepayment) by accrued but unpaid interest on the principal amount being prepaid to (but not including) the date of prepayment, plus any Fees (if any) included in, and any losses, costs and expenses, as more fully described in Section 2.15. Term Loans prepaid pursuant to Section 2.12 may not be reborrowed. To the extent that any amounts required to be applied as a prepayment pursuant to this Section 2.12 are on deposit in the Collection Account on any Allocation Date on which an Event of Default is not continuing, the portion of such amount allocated to the Term Loans; provided that Loans pursuant to the Collateral Agency and Accounts Agreement of such percentage in clause (1) above amounts shall be reduced applied as, Available Funds on such Payment Date pursuant to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 92.10(b).
Appears in 1 contract
Samples: Term Loan Credit and Guaranty Agreement (United Airlines, Inc.)
Mandatory Prepayment of Term Loans. (i) The Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings the Parent Borrower or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion of such Net Cash Proceeds applied (to the extent the Parent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) ), and (iii) the Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the first Fiscal Year ending on or about December 31, 2016commencing after the Closing Date) (each, an “ECF Payment Date”), in a Dollar Equivalent an amount equal to (A) (1A)(1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ the Parent Borrower’s Excess Cash Flow for such Fiscal Year minus (2) the sum of (xs) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) prepaid pursuant to Subsection 4.4(a), Incremental Revolving Loans voluntarily prepaid to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction and Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (w) below), (u) the aggregate amount of cash consideration (including any expenses, charges and losses in the form of earn-out obligations and contingent consideration obligations (including to the extent accounted for as performance and retention bonuses, compensation or otherwise) and adjustments thereof and purchase price adjustments) paid by the Parent Borrower and the Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including acquisitions) made during such Fiscal Year constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (iii) of the definition thereof and intercompany Investments by and among the Parent Borrower and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 (which, in any event, shall not include any deemed application pursuant to clause (z) below), (v) the amount of Capital Expenditures either made in cash or accrued during such Fiscal Year (provided that, whether any such Capital Expenditures shall be deducted for the Fiscal Year in which cash payments for such Capital Expenditures have been paid or the Fiscal Year in which such Capital Expenditures have been accrued shall be at the Borrower Representative’s election; provided, further that, in no case shall any accrual of a Capital Expenditure which has previously been deducted under this clause (2) give rise to a subsequent deduction upon the making of such Capital Expenditure in cash in the same or any subsequent Fiscal Year) (which, in any event, shall not include any deemed application pursuant to clause (z) below), (w) the aggregate principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) prepaid pursuant to Subsection 4.4(a), Incremental Revolving Loans voluntarily prepaid to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction and Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment), in each case during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower Representative as prepaid pursuant to this Subsection 4.4(e)(iii) (provided that no prepayments made pursuant to the other clauses of this Subsection 4.4(e) shall be included in Subsections 4.4(e)(iii)(A)(2)(w) or (x)), (x) any ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Senior ABL Facility during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (y) below), (y) the aggregate principal amount of ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Senior ABL Facility during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower Representative as prepaid pursuant to this Subsection 4.4(e)(iii) and (z) at the Borrower Representative’s election, without duplication of amounts deducted from Excess Cash Flow pursuant to this Subsection 4.4(e)(iii)(2) in respect of prior Fiscal Years, the aggregate consideration required to be paid in cash by the Parent Borrower or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such Fiscal Year relating to Investments constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (xiii) from previous of the definition thereof and intercompany Investments by and among the Parent Borrower and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 or Capital Expenditures to be consummated or made during the period of four consecutive fiscal years quarters of the Parent Borrower following the end of such Fiscal Year, provided that to the extent the aggregate amount of cash actually utilized to finance such Investments and Capital Expenditures during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such prepayment exceeded shortfall shall be added to the amount calculation of prepayments required to be made from Holdings’ Excess Cash Flow in at the end of such period of four consecutive fiscal yearquarters, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (including a revolving credit facility) (unless, in the case of clause (v), such Indebtedness has been repaid) (the amount described in this clause (A), the “ECF Prepayment Payment Amount”) minus (B) the portion of such ECF Prepayment Payment Amount applied (to the extent Parent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans; provided that (x) such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured First Lien Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.003.00:1.00 and (y) the Borrowers shall only be required to make any payment described in clause (iii) to the extent that the ECF Payment Amount determined in accordance with clauses (1) and (2) of clause (iii)(A) exceeds the greater of $15,000,00024,000,000 and 0.80% of Consolidated Total Assets, and in such case the ECF Payment Amount shall be the amount in excess of the greater of $15,000,00024,000,000 and 0.80% of Consolidated Total Assets. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection Section 9.
Appears in 1 contract
Mandatory Prepayment of Term Loans. (ia) The Borrower shallSubject to clause (e) hereof, the Term Loan A shall be subject to required principal reductions in accordance the amount of the Applicable Recapture Percentage of Excess Cash Flow for each fiscal quarter, such prepayments to be payable in respect of each fiscal quarter beginning with Subsection 4.4(gthe fiscal quarter ending June 30, 2012, and each fiscal quarter thereafter, and to be due 60 days following the end of such fiscal quarter, except that for the last fiscal quarter in each Fiscal Year, such payment shall be due 120 days following the end of such quarter.
(b) Subject to clause (e) hereof, immediately upon receipt by any Credit Party of any Net Cash Proceeds from any Asset Sales (other than Net Cash Proceeds of Asset Sales permitted under Section 8.4).
(c) Subject to clause (e) hereof, immediately upon receipt by any Credit Party of Net Cash Proceeds from the issuance of any Equity Interests of such Person (other than Equity Interests issued in May, 2011, to Google for up to $10,000,000, and except for Equity Interests under any stock option or employee incentive plans listed on Schedule 6.13 hereto (or any successor plans) or Equity Interests of WSM issued to directors, officers or employees of the Borrowers or their Subsidiaries) or Net Cash Proceeds from the issuance of any Subordinated Debt after the Effective Date, Borrowers shall prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion one hundred percent (100%) of such Net Cash Proceeds from the issuance of Subordinated Debt and fifty percent (50%) of such Net Cash Proceeds from the issuance of any Equity Interests.
(d) Each mandatory prepayment under this Section 4.8 or any other mandatory or optional prepayment under this Agreement shall be in addition to any scheduled installments or optional prepayments made prior thereto, and shall be subject to Section 11.1, and shall be applied to installments of Term Loan A in the same order as set forth in Section 4.7 for voluntary prepayments (except that mandatory prepayments under Section 4.8(a) shall be made in the inverse order of maturities).
(e) To the extent that, on the date any mandatory prepayment of any Term Loan under this Section 4.8 is due, the Indebtedness under any Term Loan or any other Indebtedness to be prepaid is being carried, in whole or in part, at the Eurodollar-based Rate and no Default or Event of Default has occurred and is continuing, Borrowers may deposit the amount of such mandatory prepayment in a cash collateral account to be held by the Agent, for and on behalf of the Lenders (which shall be an interest-bearing account), on such terms and conditions as are reasonably acceptable to Agent and upon such deposit, the obligation of each Borrower to make such mandatory prepayment shall be deemed satisfied. Subject to the terms and conditions of said cash collateral account, sums on deposit in said cash collateral account shall be applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereofuntil exhausted) to prepay, repay or purchase Pari Passu Indebtedness reduce the principal balance of such Term Loan on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant each Eurodollar-Interest Period attributable to the last proviso of this clause (iii)) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal year, in each case, excluding prepayments funded with proceeds from the Incurrence of longEurodollar-term Indebtedness (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as based Advances of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9such Term Loan, thereby avoiding breakage costs under Section 11.1.
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Mandatory Prepayment of Term Loans. (i) The Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings the Borrower or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion of such Net Cash Proceeds applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) ), and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 20162015) (each, an “ECF Payment Date”), in a Dollar Equivalent an amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ the Borrower’s Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a), Revolving Loans (including Incremental Revolving Loans, Extended Revolving Loans and Specified Refinancing Revolving Loans) prepaid pursuant to Subsection 4.4(b) to the extent accompanied by a corresponding permanent Revolving Commitment reduction, Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (y) below) and (y) the aggregate principal amount in respect of clause Term Loans (xincluding Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) from previous fiscal years prepaid pursuant to Subsection 4.4(a), Revolving Loans (including Incremental Revolving Loans, Extended Revolving Loans and Specified Refinancing Revolving Loans) prepaid pursuant to Subsection 4.4(b) to the extent accompanied by a corresponding permanent Revolving Commitment reduction, Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment exceeded prepayment), in each case during the amount period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(e)(iii) (provided that no prepayments required made pursuant to the other clauses of this Subsection 4.4(e) shall be made from Holdings’ Excess Cash Flow included in such fiscal yearSubsections 4.4(e)(iii)(A)(2)(x) or (y)), in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on no more than a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured First Lien Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.003.75:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection Section 9.
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Samples: First Lien Credit Agreement (PharMEDium Healthcare Holdings, Inc.)
Mandatory Prepayment of Term Loans. Subject to Subsection 4.4(f), (i) The the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings the Borrower or any of its Restricted Subsidiaries shall Incur (A) Specified Refinancing Indebtedness or (B) any Indebtedness for borrowed money (excluding Indebtedness not permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans)8.1, the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion of such Net Cash Proceeds applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) ), and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 20162015) (each, an “ECF Payment Date”), in a Dollar Equivalent an amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ the Borrower’s Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a), Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (y) below) and (y) the aggregate principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Loans) prepaid pursuant to Subsection 4.4(a), Pari Passu Indebtedness (in respect the case of clause (x) from previous fiscal years revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment exceeded prepayment), in each case during the amount period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(e)(iii) (provided that no prepayments required made pursuant to the other clauses of this Subsection 4.4(e) shall be made from Holdings’ Excess Cash Flow included in such fiscal yearSubsections 4.4(e)(iii)(A)(2)(x) or (y)), in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness Indebtedness, minus (3) the First Lien ECF Prepayment Amount (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on no more than a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured First Lien Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.003.75:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Section 9. Each prepayment of Initial Term Loans pursuant to Subsection 94.4(e)(ii)(A), but not any other prepayment of Initial Term Loans pursuant to Subsection 4.4(e), made on or prior to the second anniversary of the Closing Date shall be accompanied by the payment of the fee required by Subsection 4.5(b).
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Samples: Second Lien Credit Agreement (PharMEDium Healthcare Holdings, Inc.)
Mandatory Prepayment of Term Loans. Subject to Subsection 4.4(f), (i) The Borrower the Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by in accordance with Subsection 8.4(b) (subject to Subsection 8.4(c))) and to the extent required thereby, (ii) if on or after the Closing Date, Holdings the Parent Borrower or any of its Restricted Subsidiaries shall Incur (A) Specified Refinancing Loans or (B) any Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans8.1), the Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion of such Net Cash Proceeds applied (to the extent the Parent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) ), and (iii) the Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 20162015) (each, an “ECF Payment Date”), in a Dollar Equivalent an amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ the Parent Borrower’s Excess Cash Flow for such Fiscal Year minus (2) the sum of (xy) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a), Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (y) below) and (y) the aggregate principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Loans) prepaid pursuant to Subsection 4.4(a), Pari Passu Indebtedness (in respect the case of clause (x) from previous fiscal years revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment exceeded prepayment), in each case during the amount period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower Representative as prepaid pursuant to this Subsection 4.4(e)(iii) (provided that no prepayments required made pursuant to the other clauses of this Subsection 4.4(e) shall be made from Holdings’ Excess Cash Flow included in such fiscal yearSubsections 4.4(e)(iii)(A)(2)(x) or (y)), in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness Indebtedness, minus (3) the First Lien ECF Prepayment Amount (the amount described in this clause (A), as may be adjusted pursuant to clause (y) of the last proviso of this clause (iii), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Parent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on no more than a pro rata basis with the Term Loans; provided that (x) such percentage in clause (1iii)(A)(1) above shall be reduced to 0% if the Consolidated Secured First Lien Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.003.50:1.00 and (y) the Borrowers shall only be required to make any payment described in clause (iii) to the extent that the ECF Prepayment Amount determined in accordance with clauses (1) and (2) of clause (iii)(A) exceeds €18,000,000, and in such case the ECF Prepayment Amount shall be the amount in excess of €18,000,000. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Section 9. Each prepayment of Initial Term Loans pursuant to Subsection 94.4(e)(ii)(A), but not any other prepayment of Initial Term Loans pursuant to Subsection 4.4(e), made on or prior to the second anniversary of the Closing Date shall be accompanied by the payment of the fee required by Subsection 4.5(b).
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Mandatory Prepayment of Term Loans. (i) The Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings the Parent Borrower or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion of such Net Cash Proceeds applied (to the extent the Parent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) ), and (iii) the Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the first Fiscal Year ending on or about December 31, 2016commencing after the Closing Date) (each, an “ECF Payment Date”), in a Dollar Equivalent an amount equal to (A) (1A)(1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ the Parent Borrower’s Excess Cash Flow for such Fiscal Year minus (2) the sum of (xs) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) prepaid pursuant to Subsection 4.4(a), Incremental Revolving Loans voluntarily prepaid to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction and Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (w) below), (u) the aggregate amount of cash consideration (including any expenses, charges and losses in the form of earn-out obligations and contingent consideration obligations (including to the extent accounted for as performance and retention bonuses, compensation or otherwise) and adjustments thereof and purchase price adjustments) paid by the Parent Borrower and the Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including acquisitions) made during such Fiscal Year constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (iii) of the definition thereof and intercompany Investments by and among the Parent Borrower and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 (which, in any event, shall not include any deemed application pursuant to clause (z) below), (v) the amount of Capital Expenditures either made in cash or accrued during such Fiscal Year (provided that, whether any such Capital Expenditures shall be deducted for the Fiscal Year in which cash payments for such Capital Expenditures have been paid or the Fiscal Year in which such Capital Expenditures have been accrued shall be at the Borrower Representative’s election; provided, further that, in no case shall any accrual of a Capital Expenditure which has previously been deducted under this clause (2) give rise to a subsequent deduction upon the making of such Capital Expenditure in cash in the same or any subsequent Fiscal Year) (which, in any event, shall not include any deemed application pursuant to clause (z) below), (w) the aggregate principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) prepaid pursuant to Subsection 4.4(a), Incremental Revolving Loans voluntarily prepaid to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction and Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment), in each case during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower Representative as prepaid pursuant to this Subsection 4.4(e)(iii) (provided that no prepayments made pursuant to the other clauses of this Subsection 4.4(e) shall be included in Subsections 4.4(e)(iii)(A)(2)(w) or (x)), (x) any ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Senior ABL Facility during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (y) below), (y) the aggregate principal amount of ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Senior ABL Facility during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower Representative as prepaid pursuant to this Subsection 4.4(e)(iii) and (z) at the Borrower Representative’s election, without duplication of amounts deducted from Excess Cash Flow pursuant to this Subsection 4.4(e)(iii)(2) in respect of prior Fiscal Years, the aggregate consideration required to be paid in cash by the Parent Borrower or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such Fiscal Year relating to Investments constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (xiii) from previous of the definition thereof and intercompany Investments by and among the Parent Borrower and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 or Capital Expenditures to be consummated or made during the period of four consecutive fiscal years quarters of the Parent Borrower following the end of such Fiscal Year, provided that to the extent the aggregate amount of cash actually utilized to finance such Investments and Capital Expenditures during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such prepayment exceeded shortfall shall be added to the amount calculation of prepayments required to be made from Holdings’ Excess Cash Flow in at the end of such period of four consecutive fiscal yearquarters, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (including a revolving credit facility) (unless, in the case of clause (v), such Indebtedness has been repaid) (the amount described in this clause (A), the “ECF Prepayment Payment Amount”) minus (B) the portion of such ECF Prepayment Payment Amount applied (to the extent Parent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans; provided that (x) such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.003.00:1.00 and (y) the Borrowers shall only be required to make any payment described in clause (iii) to the extent that the ECF Payment Amount determined in accordance with clauses (1) and (2) of clause (iii)(A) exceeds $10,000,000, and in such case the ECF Payment Amount shall be the amount in excess of $10,000,000. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection Section 9.”
Appears in 1 contract
Mandatory Prepayment of Term Loans. (ia) The Borrower shall, in accordance Within five (5) Business Days of Loyalty Co or any other SPV Party receiving any Net Proceeds from the issuance or incurrence of any Indebtedness of Loyalty Co or any other SPV Party (other than with Subsection 4.4(grespect to any Indebtedness permitted to be incurred pursuant to Section 6.02), the Borrowers shall prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an aggregate amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion Term Loans’ Pro Rata Share of such Net Cash Proceeds applied Proceeds.
(to b) No later than ten (10) Business Days following the extent Borrower date of receipt by Parent or any of its Subsidiaries of any Net Proceeds in respect of any Recovery Event (in each case, in respect of Collateral) which Net Proceeds, together with the aggregate amount of Net Proceeds previously received from Recovery Events since the later of (x) the date that is 36 months prior to the date of such Recovery Event and (y) the Closing Date, are in excess of $10,000,000 (the “Threshold Amount”, and all such Net Proceeds in excess of the Threshold Amount, “Excess Proceeds”), the Borrowers shall (i) give written notice to the Administrative Agent of such Recovery Event and (ii) offer to prepay the Term Loans in an aggregate amount equal to the Term Loans’ Pro Rata Share of such Excess Proceeds (other than any such Excess Proceeds withheld for reinvestment pursuant to the proviso in this clause (b)) no later than the tenth (10th) Business Day following the date of receipt of such Net Proceeds; provided that (1) so long as no Event of Default shall have occurred and be continuing at the time of receipt of such Excess Proceeds, the Borrowers shall have the option to (x) invest such Excess Proceeds within 365 days of receipt thereof in Qualified Replacement Assets (or, if a binding commitment for any such investment has been entered into within such 365-day period, within 180 days after the end of such 365-day period) or (y) repair, replace or restore the assets which are the subject of such Recovery Event; and (2) within ten (10) Business Days of the end of such permitted reinvestment period (or earlier if the Borrowers so elect), the Borrowers shall offer to prepay the Term Loans in an aggregate amount equal to the Term Loans’ Pro Rata Share of the aggregate amount of such Excess Proceeds not used in accordance with the preceding subclause (1). Any Lender may elect, by notice to the Administrative Agent at least two Business Days prior to the prepayment date, to decline all (but not less than all) of the prepayment of any Class of its Term Loans pursuant to this Section 2.12(b), in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be retained by Loyalty Co (or American or such other applicable Subsidiary).
(c) No later than ten (10) Business Days following the date of receipt by Parent or any of its Subsidiaries of any Net Proceeds in respect of (x) any Collateral Sale of AAdvantage Intellectual Property (other than with respect to any Permitted Disposition) or (y) any other Collateral Sale (other than with respect to any Permitted Pre-paid Miles Purchase or Permitted Disposition) which Net Proceeds, together with the aggregate amount of Net Proceeds previously received from Collateral Sales (other than with respect to any Permitted Pre-paid Miles Purchases or Permitted Dispositions) during the fiscal year in which such date occurs, are in excess of $10,000,000 (the “CS Threshold Amount”, and all such Net Proceeds in excess of the CS Threshold Amount together with all Net Proceeds of any Collateral Sale of AAdvantage Intellectual Property (other than with respect to any Permitted Pre-paid Miles Purchase or Permitted Disposition), “CS Excess Proceeds”), the Borrowers shall offer to prepay the Term Loans in an aggregate amount equal to Term Loans’ Pro Rata Share of such CS Excess Proceeds no later than the tenth (10th) Business Day following the date of receipt of such CS Excess Proceeds. Any Lender may elect, by notice to the Administrative Agent at least two Business Days prior to the prepayment date, to decline all (but not less than all) of the prepayment of any Class of its Term Loans pursuant to this Section 2.12(c), in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be retained by Loyalty Co (or Parent or such other applicable Subsidiary). Notwithstanding anything herein to the contrary, no sales of Collateral shall be permitted during the continuance of any Early Amortization Period or Event of Default or if an Early Amortization Event or Event of Default would result therefrom.
(d) Within ten (10) Business Days of Parent or any of its Subsidiaries receiving any Net Proceeds as a result of any Contingent Payment Event which Net Proceeds, together with the aggregate amount of Net Proceeds previously received from Contingent Payment Events since the Closing Date, are in excess of $50,000,000, the Borrowers shall offer to prepay the Term Loans in an aggregate amount equal to the Term Loans’ Pro Rata Share of such excess Net Proceeds. Any Lender may elect, by notice to the Administrative Agent at least two Business Days prior to the prepayment date, to decline all (but not less than all) of the prepayment of any Class of its Term Loans pursuant to this Section 2.12(d), in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be retained by Loyalty Co (or Parent or such other applicable Subsidiary).
(e) Within ten (10) Business Days of Parent or any of its Subsidiaries receiving any Net Proceeds of a Pre-paid Miles Purchase which Net Proceeds, together with the aggregate amount of Net Proceeds previously received from Pre-paid Miles Purchases since the Closing Date, are in excess of $500,000,000, the Borrowers shall prepay the Term Loans in an aggregate amount equal to the Term Loans’ Pro Rata Share of such excess Net Proceeds; provided that the Borrowers shall not be required to make such prepayment so long as the aggregate amount of Net Proceeds received from Pre-Paid Miles Purchases since the Closing Date is less than $505,000,000.
(f) Within five (5) Business Days following the occurrence of a Parent Change of Control, the Borrowers shall offer to prepay all of each Lender’s Term Loans at a purchase price in cash equal to 100% of the aggregate principal amount of the Term Loans prepaid. The repayment date shall be no later than thirty (30) days from the date such offer is made. Any Lender may elect, by notice to the terms thereofAdministrative Agent at least two (2) Business Days prior to prepaythe prepayment date, repay or purchase Pari Passu Indebtedness to decline all (but not less than all) of the prepayment of any Class of its Term Loans pursuant to this Section 2.12(f).
(g) Amounts required to be applied to the prepayment of Term Loans pursuant to Section 2.12(a) through (f) shall be applied to prepay on a pro rata basis with the remaining scheduled amortization payments of the Term Loans. To the extent that such amounts are not applied on a Payment Date pursuant to Section 2.10(b), the Borrowers shall provide the Administrative Agent (with a copy to the Collateral Administrator) with payment instructions setting forth the applicable amounts and payees in each case with respect thereof. All prepayments under Section 2.12 shall be accompanied (inclusive of all Premiums (if any) owed on account of any such prepayment prepayment) by accrued but unpaid interest on the principal amount being prepaid to (but not including) the date of prepayment, plus any Fees (if any) included in, and any losses, costs and expenses, as more fully described in Section 2.15. Term Loans prepaid pursuant to Section 2.12 may not be reborrowed. To the extent that any amounts required to be made applied as a prepayment pursuant to this Section 2.12 are on or before deposit in the fifth Business Day following notice given Collection Account on any Allocation Date on which an Event of Default is not continuing, the portion of such amount allocated to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) Collateral Agency and Accounts Agreement shall be applied as Available Funds on the sum of (x) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid related Payment Date pursuant to Subsection 4.4(aSection 2.10(b).
(h) and any Notwithstanding the foregoing, to the extent that the prepayment of Term Loans pursuant to Section 2.12(b) through (including Incremental Term Loans, Extended e) arises as a result of Net Proceeds generated by a Subsidiary of Parent (other than an SPV Party) that is not organized in the United States (or a Subsidiary of Parent that is organized in the United States but that is a Subsidiary of an entity (other than an SPV Party) that is not organized in the United States) and the Borrowers reasonably determine (in consultation with the Administrative Agent) that actions reasonably required to use such Net Proceeds to effect a prepayment of Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant sections of this Section 2.12 would result in material and adverse Tax consequences to Subsection 4.4(l) Parent or its Affiliates, then the relevant amounts shall be limited entitled to be retained by Parent or the actual cash amount applicable Affiliate of Parent and such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of such prepayment exceeded the amount of prepayments amounts shall not be required to be made from Holdings’ Excess Cash Flow in such fiscal year, in each case, excluding prepayments funded with proceeds from the Incurrence used to effect a prepayment of long-term Indebtedness (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced Loans pursuant to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9Section 2.12.
Appears in 1 contract
Samples: Term Loan Credit and Guaranty Agreement (American Airlines, Inc.)
Mandatory Prepayment of Term Loans. (a) No later than ten (10) Business Days after the date on which the financial statements with respect to each fiscal year of the Borrower are required to be delivered pursuant to Section 5.01(a), commencing with the fiscal year ending on December 31, 2007, the Borrower shall prepay outstanding Term Loans in an aggregate principal amount equal to (A) 50% of Excess Cash Flow for the fiscal year then ended, minus (B) the amount of any prepayments of Term Loans made pursuant to Section 2.08 during such fiscal year, except to the extent that such prepayments were financed with the proceeds of other Indebtedness of the Borrower or its Subsidiaries; provided that (i) The such percentage of Excess Cash Flow shall be reduced to 25% of such Excess Cash Flow if the Leverage Ratio at the end of such fiscal year shall be equal to or less than 3.00 to 1.00, but greater than 2.00 to 1.00, and (ii) such prepayment shall not be required if the Leverage Ratio at the end of such fiscal year shall be equal to or less than 2.00 to 1.00.
(i) Not later than the third Business Day following the receipt of Net Proceeds in respect of any Asset Sale, the Borrower shall, shall apply an amount equal to 100% of the Net Proceeds received with respect thereto to prepay outstanding Term Loans in accordance with Subsection 4.4(gSection 2.09(e), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), .
(ii) if on Not later than the third Business Day following the receipt of Net Insurance/Condemnation Proceeds in excess of $2,500,000 arising from any event or after series of related events or in excess of $10,000,000 in any Fiscal Year, the Closing Date, Holdings Borrower shall apply an amount equal to 100% of such Net Insurance/Condemnation Proceeds to prepay outstanding Term Loans in accordance with Section 2.09(e).
(c) In the event that any Loan Party or any Subsidiary of its Restricted Subsidiaries a Loan Party shall Incur receive Net Proceeds from the issuance or incurrence of Indebtedness for money borrowed of any Loan Party or any Subsidiary of a Loan Party (other than any cash proceeds from the issuance of Indebtedness for money (excluding Indebtedness borrowed permitted pursuant to Subsection 8.1 other than Specified Refinancing Term LoansSection 6.01), the Borrower shall, substantially simultaneously with (and in any event not later than the third Business Day next following) the receipt of such Net Proceeds by such Loan Party or such Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay outstanding Term Loans in accordance with Subsection 4.4(gSection 2.09(e), prepay .
(d) In the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loansevent and on each occasion that an Equity Issuance occurs, the Tranche Borrower shall, substantially simultaneously with (and in any event not later than the third Business Day next following) the occurrence of Term Loans being refinanced) in a Dollar Equivalent amount equal to 100.0such Equity Issuance, apply 50% of the Net Cash Proceeds thereof minus the portion therefrom to prepay outstanding Terms Loans in accordance with Section 2.09(e); provided that (i) such percentage of such Net Cash Proceeds shall be reduced to 25% of such Net Cash Proceeds if the Leverage Ratio at the end of the twelve month period then most recently ended shall be equal to or less than 3.00 to 1.00, but greater than 2.00 to 1.00, and (ii) such prepayment shall not be required if the Leverage Ratio at the end of the twelve month period most recently ended shall be equal to or less than 2.00 to 1.00.
(e) All amounts required to be paid pursuant to this Section 2.09 shall be applied to prepay outstanding Term Loans and Other Term Loans of the Lenders and Incremental Term Lenders that accept the same (and pro rata among such Lenders and Incremental Term Lenders), which prepayments any Lender or Incremental Lender may elect, by notice to the extent Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower or any pursuant to this Section 2.09, to decline all (but not a portion) of its Subsidiaries is required pro rata share of such prepayment (such declined amounts, the "DECLINED PROCEEDS"). Any Declined Proceeds shall be offered to the Lenders and Incremental Lenders not so declining such prepayment (with such Lenders or Incremental Lender having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the terms thereof) Administrative Agent). All accepted prepayments shall be applied to prepay, repay or purchase Pari Passu Indebtedness the repayment of the next four Scheduled Loan Repayments in forward order of maturity and then to the remaining applicable Scheduled Loan Repayments on a pro rata basis with the (and on a comparable basis to scheduled payments of Incremental Term Loans) and with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied on a pro rata basis to the then outstanding Loans being prepaid irrespective of whether such outstanding Loans are ABR Term Loans or Adjusted LIBO Rate Term Loans; provided that if no Lenders exercise their right to waive a given mandatory prepayment, the amount thereof shall be applied first to ABR Term Loans to the full extent thereof before application to LIBO Rate Term Loans in each case with such prepayment a manner that minimizes the amount of any payments required to be made on or before by the fifth Business Day following notice given Borrower pursuant to Section 2.14. Thereafter, the remaining Declined Proceeds may be retained by the Borrower.
(f) The Borrower shall deliver to the Administrative Agent, at the time of each Lender prepayment required under this Section 2.09, (i) a certificate signed by a Financial Officer of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) Borrower setting forth in reasonable detail the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day calculation of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal year, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness and (the amount described in this clause (A), the “ECF Prepayment Amount”ii) minus (B) the portion of such ECF Prepayment Amount applied (to the extent Borrower practicable, at least three (3) Business Days' prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Term Loan being prepaid and the principal amount of each Term Loan (or any of its Subsidiaries is required by the terms portion thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above be prepaid. Prepayments shall be reduced accompanied by accrued interest as required by Section 2.11. All prepayments of Borrowings under this Section 2.09 shall be subject to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) Section 2.14, but shall limit the rights of the Agents and the Lenders set forth in Subsection 9otherwise be without premium or penalty.
Appears in 1 contract
Mandatory Prepayment of Term Loans. (a) No later than three Business Days after the earlier of (i) The Borrower shallninety (90) days afterthe end of each fiscal year of the Borrower, in accordance commencing with Subsection 4.4(g)the fiscal year ending on December 31,2018, prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), and (ii) if the date on or after which the Closing financial statements with respect to such fiscal year are deliveredpursuant to Section 5.01(a) (the “Excess Cash Flow Application Date, Holdings or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans”), the Borrower shallshall prepayoutstanding Term Loans in an aggregate principal amount equal to the ECF Percentage for the ExcessCash Flow Period then ended; provided that no such prepayment shall be required for any Excess CashFlow Period to the extent Excess Cash Flow for such Excess Cash Flow Period was less than $10.0million; provided, further, that the amount of such prepayment shall be further reduced (withoutduplication of any amount that has reduced the amount of Term Loans required to be prepaid pursuant tothis clause (a) in accordance with Subsection 4.4(gany other year) by an amount equal to the amount of Term Loans prepaid pursuant toSection 2.08 during the time period commencing at the beginning of the Excess Cash Flow Period withrespect to which such prepayment is required and ending on the day preceding the Excess Cash FlowApplication Date (in the case of a prepayment of Term Loans pursuant to Section 2.08(d), prepay limited to the-57-
(b) On each occasion that a Prepayment Event occurs, the Term Loans Borrower shall withinfive Business Days after the occurrence of such Prepayment Event (or, in the case of Deferred Net CashProceeds, within five Business Days after the incurrence last day of any Specified Refinancing Term Loansthe Reinvestment Period relating to suchPrepayment Event), the Tranche prepay, in accordance with clause (c) below, a principal amount of Term Loans being refinanced) in a Dollar Equivalent amount equal Loansequal to 100.0100% of the Net Cash Proceeds thereof minus from such Prepayment Event; provided that with respect to theNet Cash Proceeds of an Asset Sale Prepayment Event or Casualty Event, the portion Borrower may (i) use aportion of such Net Cash Proceeds applied to prepay or repurchase other Indebtedness (other than Term Loansand loans and commitments under the ABL Credit Agreement or any permitted RefinancingIndebtedness in respect thereof) secured on a pari passu basis with the Obligations (and, in the case ofany revolving Indebtedness, to correspondingly reduce commitments) to the extent the Borrower or any isrequired to prepay such other Indebtedness as a result of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loanssuch Prepayment Event, in each case with such prepayment in anamount not to be made on or before exceed the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) the sum product of (x) the aggregate Dollar Equivalent amount of such Net Cash Proceeds multiplied by (y) afraction, the numerator of which is the outstanding principal amount of such other Indebtedness and thedenominator of which is the sum of the outstanding principal amount of such other Indebtedness and theoutstanding principal amount of Term Loans or (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loansii) prepaid pursuant to Subsection 4.4(ause such Net Cash Proceeds in respect of AccountsCollateral (as such term is defined in the ABL Credit Agreement as in effect on the date hereof) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu toprepay Indebtedness (including revolving loans and correspondingly reduce commitments) under the ABL Credit Agreement orany permitted Refinancing Indebtedness in respect thereof to the extent any commitments with respect thereto are permanently reduced), the Borrower is required to repaysuch other Indebtedness as a result of such Prepayment Event in each case during such Fiscal Year and (y) an amount not to exceed the aggregate amount Net CashProceeds in respect of clause such Accounts Collateral.
(xc) from previous fiscal years The Borrower shall deliver to the extent Agent, at the time of each prepaymentrequired under Section 2.09(a) or (b), (i) a certificate signed by a Financial Officer of the Borrowersetting forth in reasonable detail the calculation of the amount of such prepayment exceeded and (ii) to the extentpracticable, at least three (3) Business Days prior written notice of such prepayment. Amounts requiredto be applied to the prepayment of Term Loans in accordance with clauses (a) and (b) above shall beapplied pro rata to prepay Term Loans under the Term Loan Facilities and shall be applied to scheduledamortization of such Term Loans as directed by the Borrower; provided that notwithstanding theforegoing, the Borrower may elect in its sole discretion to apply the Net Cash Proceeds from any DebtIncurrence Prepayment Event to prepay any Class of Term Loans selected by the Borrower. Each noticeof prepayment shall specify the prepayment date, the Type of each Term Loan being prepaid and theprincipal amount of prepayments required each Term Loan (or portion thereof) to be made prepaid. Prepayments shall beaccompanied by accrued interest as required by Section 2.11. All prepayments of Borrowings under thisSection 2.09 shall be subject to Section 2.14 (and, in the case of a Repricing Transaction, Section2.08(c)), but shall otherwise be without premium or penalty.
(d) [Reserved].
(e) Notwithstanding any other provisions of this Section 2.09, (A) to the extent thatany of or all the Net Cash Proceeds of any Asset Sale Prepayment Event by a Foreign Subsidiary givingrise to a prepayment pursuant to Section 2.09(b) (a “Foreign Prepayment Event”) or Excess Cash Flowattributable to a Foreign Subsidiary are prohibited or delayed by any Requirement of Law from Holdings’ beingrepatriated to the Borrower with respect to Term Loans in an aggregate principal amount equal to theECF Percentage for the Excess Cash Flow in such fiscal yearPeriod then ended, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (the an amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) equal to the portion of such ECF Prepayment Amount NetCash Proceeds or Excess Cash Flow so affected will not be required to be applied (to repay Term Loansat the times provided in this Section 2.09, as the case may be, so long, but only so long, as the applicableRequirement of Law will not permit repatriation to the extent Borrower or any of its Subsidiaries is (the Borrower hereby agreeing to causethe applicable Foreign Subsidiary to promptly take all actions reasonably required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9.applicable-58-
Appears in 1 contract
Samples: Credit Agreement (Clean Harbors Inc)
Mandatory Prepayment of Term Loans. (i) The Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings the Parent Borrower or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion of such Net Cash Proceeds applied (to the extent the Parent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) ), and (iii) the Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the first Fiscal Year ending on or about December 31, 2016commencing after the Closing Date) (each, an “ECF Payment Date”), in a Dollar Equivalent an amount equal to (A) (1A)(1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ the Parent Borrower’s Excess Cash Flow for such Fiscal Year minus (2) the sum of (xs) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) prepaid pursuant to Subsection 4.4(a), Incremental Revolving Loans voluntarily prepaid to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction and Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (w) below), (u) the aggregate amount of cash consideration (including any expenses, charges and losses in the form of earn-out obligations and contingent consideration obligations (including to the extent accounted for as performance and retention bonuses, compensation or otherwise) and adjustments thereof and purchase price adjustments) paid by the Parent Borrower and the Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including acquisitions) made during such Fiscal Year constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (iii) of the definition thereof and intercompany Investments by and among the Parent Borrower and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 (which, in any event, shall not include any deemed application pursuant to clause (z) below), (v) the amount of Capital Expenditures either made in cash or accrued during such Fiscal Year (provided that, whether any such Capital Expenditures shall be deducted for the Fiscal Year in which cash payments for such Capital Expenditures have been paid or the Fiscal Year in which such Capital Expenditures have been accrued shall be at the Borrower Representative’s election; provided, further that, in no case shall any accrual of a Capital Expenditure which has previously been deducted under this clause (2) give rise to a subsequent deduction upon the making of such Capital Expenditure in cash in the same or any subsequent Fiscal Year) (which, in any event, shall not include any deemed application pursuant to clause (z) below), (w) the aggregate principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) prepaid pursuant to Subsection 4.4(a), Incremental Revolving Loans voluntarily prepaid to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction and Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment), in each case during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower Representative as prepaid pursuant to this Subsection 4.4(e)(iii) (provided that no prepayments made pursuant to the other clauses of this Subsection 4.4(e) shall be included in Subsections 4.4(e)(iii)(A)(2)(w) or (x)), (x) any ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Senior ABL Facility during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (y) below), (y) the aggregate principal amount of ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Senior ABL Facility during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower Representative as prepaid pursuant to this Subsection 4.4(e)(iii) and (z) at the Borrower Representative’s election, without duplication of amounts deducted from Excess Cash Flow pursuant to this Subsection 4.4(e)(iii)(2) in respect of prior Fiscal Years, the aggregate consideration required to be paid in cash by the Parent Borrower or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such Fiscal Year relating to Investments constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (xiii) from previous of the definition thereof and intercompany Investments by and among the Parent Borrower and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 or Capital Expenditures to be consummated or made during the period of four consecutive fiscal years quarters of the Parent Borrower following the end of such Fiscal Year, provided that to the extent the aggregate amount of cash actually utilized to finance such Investments and Capital Expenditures during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such prepayment exceeded shortfall shall be added to the amount calculation of prepayments required to be made from Holdings’ Excess Cash Flow in at the end of such period of four consecutive fiscal yearquarters, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (including a revolving credit facility) (unless, in the case of clause (v), such Indebtedness has been repaid) (the amount described in this clause (A), the “ECF Prepayment Payment Amount”) minus (B) the portion of such ECF Prepayment Payment Amount applied (to the extent Parent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans; provided that (x) such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured First Lien Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.003.00:1.00 and (y) the Borrowers shall only be required to make any payment described in clause (iii) to the extent that the ECF Payment Amount determined in accordance with clauses (1) and (2) of clause (iii)(A) exceeds $15,000,000, and in such case the ECF Payment Amount shall be the amount in excess of $15,000,000. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection Section 9.
Appears in 1 contract
Mandatory Prepayment of Term Loans. (i) The Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings the Borrower or any of its Restricted Subsidiaries shall Incur (A) Specified Refinancing Term Loans or (B) Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans8.1), the Borrower shall, in accordance with Subsection 4.4(g), prepay (or, exchange for Rollover Indebtedness) the Term Loans (or, in the case of the incurrence Incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0% of the Net Cash Proceeds thereof (plus any portion of such Indebtedness which represents Rollover Indebtedness) minus the portion of such Net Cash Proceeds applied or offered (to the extent the Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days five Business Days following the last day on which financial statements in respect of the immediately preceding Fiscal Year fiscal year are delivered pursuant to Subsection 7.1(a) (commencing with the Fiscal Year fiscal year ending on or about December 31February 3, 20162019) (or, if later, the date on which such financial statements are required to be delivered) (each, an “ECF Payment Date”), in a Dollar Equivalent an amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ the Borrower’s Excess Cash Flow for such Fiscal Year fiscal year (such amount, the “Applicable ECF Amount”), if and to the extent that the amount of such Excess Cash FlowApplicable ECF Amount exceeds $10,000,00020,000,000 , minus (2) the sum of (xtq) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a), Incremental Revolving Loans voluntarily prepaid to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction, Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, redeemed, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) or 11.6(h) (by the Borrower or its Restricted Subsidiaries) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) or 11.6(h) (by the Borrower or its Restricted Subsidiaries) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year fiscal year (which, in any event, shall not include any designated prepayment pursuant to clause (wu) below), (ur) the aggregate principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) repaid pursuant to Subsection 2.2 and Pari Passu Indebtedness repaid pursuant to any amortization schedule provided for in such facility, in each case during such fiscal year, (ys) the aggregate amount of cash consideration (including any expenses, charges and losses in respect the form of clause earn-out obligations and contingent consideration obligations (x) from previous fiscal years including to the extent accounted for as performance and retention bonuses, compensation or otherwise) and adjustments thereof and purchase price adjustments) paid by the Borrower and the Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including acquisitions) made during such fiscal year constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (iii) of the definition thereof and intercompany Investments by and among the Borrower and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 (which, in any event, shall not include any deemed applicationContract Consideration previously deducted pursuant to clause (z) below), (vt) the amount of such prepayment exceeded the amount of prepayments required to be Capital Expenditures either made from Holdings’ Excess Cash Flow in cash or accrued during such fiscal yearyear (provided that, whether any such Capital Expenditures shall be deducted for the fiscal year in which cash payments for such Capital Expenditures have been paid or the fiscal year in which such Capital Expenditures have been accrued shall be at the Borrower’s election; provided, further that, in each case, excluding prepayments funded with proceeds from the Incurrence no case shall any accrual of long-term Indebtedness (the amount described in a Capital Expenditure which has previously been deducted under this clause (A), 2t) give rise to a subsequent deduction upon the “ECF Prepayment Amount”) minus (B) the portion making of such ECF Prepayment Amount applied (to Capital Expenditure in cash in the extent Borrower same or any of its Subsidiaries is required by the terms thereofsubsequent fiscal year) (which, in any event, shall not include any deemed applicationCapital Expenditures previously deducted pursuant to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9.clause
Appears in 1 contract
Samples: Credit Agreement (Core & Main, Inc.)
Mandatory Prepayment of Term Loans. (i) The Borrower applicable Borrower(s) shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower applicable Borrower(s) shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion of such Net Cash Proceeds applied (to the extent Borrower Holdings or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the applicable Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (by Holdings or its Restricted Subsidiaries) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) (by Holdings or its Restricted Subsidiaries) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal year, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent Borrower a Borrower, the Borrowers or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9.
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Mandatory Prepayment of Term Loans. (i) The Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings the Parent Borrower or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion of such Net Cash Proceeds applied (to the extent the Parent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) ), and (iii) the Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the first Fiscal Year ending on or about December 31, 2016commencing after the Closing Date) (each, an “ECF Payment Date”), in a Dollar Equivalent an amount equal to (A) (1A)(1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ the Parent Borrower’s Excess Cash Flow for such Fiscal Year minus (2) the sum of (xw) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) prepaid pursuant to Subsection 4.4(a), Incremental Revolving Loans voluntarily prepaid to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction and Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount which, in respect of any event, shall not include any designated prepayment pursuant to clause (x) from previous fiscal years below), (x) the aggregate principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) prepaid pursuant to Subsection 4.4(a), Incremental Revolving Loans voluntarily prepaid to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction and Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal yearprepayment), in each case, excluding prepayments funded with proceeds from case during the Incurrence of long-term Indebtedness (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis period beginning with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of day following the last day of the immediately preceding such Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9.Year
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Mandatory Prepayment of Term Loans. (a) No later than three Business Days after the earlier of (i) The Borrower shallninety (90) days afterthe end of each fiscal year of the Borrower, in accordance commencing with Subsection 4.4(g)the fiscal year ending on December 31,2018, prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), and (ii) if the date on or after which the Closing financial statements with respect to such fiscal year are deliveredpursuant to Section 5.01(a) (the “Excess Cash Flow Application Date, Holdings or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans”), the Borrower shallshall prepayoutstanding Term Loans in an aggregate principal amount equal to the ECF Percentage for the ExcessCash Flow Period then ended; provided that no such prepayment shall be required for any Excess CashFlow Period to the extent Excess Cash Flow for such Excess Cash Flow Period was less than $10.0million; provided, further, that the amount of such prepayment shall be further reduced (withoutduplication of any amount that has reduced the amount of Term Loans required to be prepaid pursuant tothis clause (a) in accordance with Subsection 4.4(gany other year) by an amount equal to the amount of Term Loans prepaid pursuant toSection 2.08 during the time period commencing at the beginning of the Excess Cash Flow Period withrespect to which such prepayment is required and ending on the day preceding the Excess Cash FlowApplication Date (in the case of a prepayment of Term Loans pursuant to Section 2.08(d), prepay limited to the-58-
(b) On each occasion that a Prepayment Event occurs, the Term Loans Borrower shall withinfive Business Days after the occurrence of such Prepayment Event (or, in the case of Deferred Net CashProceeds, within five Business Days after the incurrence last day of any Specified Refinancing Term Loansthe Reinvestment Period relating to suchPrepayment Event), the Tranche prepay, in accordance with clause (c) below, a principal amount of Term Loans being refinanced) in a Dollar Equivalent amount equal Loansequal to 100.0100% of the Net Cash Proceeds thereof minus from such Prepayment Event; provided that with respect to theNet Cash Proceeds of an Asset Sale Prepayment Event or Casualty Event, the portion Borrower may (i) use aportion of such Net Cash Proceeds applied to prepay or repurchase other Indebtedness (other than Term Loansand loans and commitments under the ABL Credit Agreement or any permitted RefinancingIndebtedness in respect thereof) secured on a pari passu basis with the Obligations (and, in the case ofany revolving Indebtedness, to correspondingly reduce commitments) to the extent the Borrower or any isrequired to prepay such other Indebtedness as a result of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loanssuch Prepayment Event, in each case with such prepayment in anamount not to be made on or before exceed the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) the sum product of (x) the aggregate Dollar Equivalent amount of such Net Cash Proceeds multiplied by (y) afraction, the numerator of which is the outstanding principal amount of such other Indebtedness and thedenominator of which is the sum of the outstanding principal amount of such other Indebtedness and theoutstanding principal amount of Term Loans or (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loansii) prepaid pursuant to Subsection 4.4(ause such Net Cash Proceeds in respect of AccountsCollateral (as such term is defined in the ABL Credit Agreement as in effect on the date hereof) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu toprepay Indebtedness (including revolving loans and correspondingly reduce commitments) under the ABL Credit Agreement orany permitted Refinancing Indebtedness in respect thereof to the extent any commitments with respect thereto are permanently reduced), the Borrower is required to repaysuch other Indebtedness as a result of such Prepayment Event in each case during such Fiscal Year and (y) an amount not to exceed the aggregate amount Net CashProceeds in respect of clause such Accounts Collateral.
(xc) from previous fiscal years The Borrower shall deliver to the extent Agent, at the time of each prepaymentrequired under Section 2.09(a) or (b), (i) a certificate signed by a Financial Officer of the Borrowersetting forth in reasonable detail the calculation of the amount of such prepayment exceeded and (ii) to the extentpracticable, at least three (3) Business Days prior written notice of such prepayment. Amounts requiredto be applied to the prepayment of Term Loans in accordance with clauses (a) and (b) above shall beapplied pro rata to prepay Term Loans under the Term Loan Facilities and shall be applied to scheduledamortization of such Term Loans as directed by the Borrower; provided that notwithstanding theforegoing, the Borrower may elect in its sole discretion to apply the Net Cash Proceeds from any DebtIncurrence Prepayment Event to prepay any Class of Term Loans selected by the Borrower. Each noticeof prepayment shall specify the prepayment date, the Type of each Term Loan being prepaid and theprincipal amount of prepayments required each Term Loan (or portion thereof) to be made prepaid. Prepayments shall beaccompanied by accrued interest as required by Section 2.11. All prepayments of Borrowings under thisSection 2.09 shall be subject to Section 2.14 (and, in the case of a Repricing Transaction, Section2.08(c)), but shall otherwise be without premium or penalty.
(d) [Reserved].
(e) Notwithstanding any other provisions of this Section 2.09, (A) to the extent thatany of or all the Net Cash Proceeds of any Asset Sale Prepayment Event by a Foreign Subsidiary givingrise to a prepayment pursuant to Section 2.09(b) (a “Foreign Prepayment Event”) or Excess Cash Flowattributable to a Foreign Subsidiary are prohibited or delayed by any Requirement of Law from Holdings’ beingrepatriated to the Borrower with respect to Term Loans in an aggregate principal amount equal to theECF Percentage for the Excess Cash Flow in such fiscal yearPeriod then ended, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (the an amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) equal to the portion of such ECF Prepayment Amount NetCash Proceeds or Excess Cash Flow so affected will not be required to be applied (to repay Term Loansat the times provided in this Section 2.09, as the case may be, so long, but only so long, as the applicableRequirement of Law will not permit repatriation to the extent Borrower or any of its Subsidiaries is (the Borrower hereby agreeing to causethe applicable Foreign Subsidiary to promptly take all actions reasonably required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9.applicable-59-
Appears in 1 contract
Samples: Credit Agreement (Clean Harbors Inc)
Mandatory Prepayment of Term Loans. (a) No later than three Business Days after the earlier of (i) The Borrower shallninety (90) days after the end of each fiscal year of the Borrower, in accordance commencing with Subsection 4.4(g)the fiscal year ending on December 31, prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c))2018, and (ii) if the date on or after which the Closing Date, Holdings or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted financial statements with respect to such fiscal year are delivered pursuant to Subsection 8.1 other than Specified Refinancing Term LoansSection 5.01(a) (the “Excess Cash Flow Application Date”), the Borrower shallshall prepay outstanding Term Loans in an aggregate principal amount equal to the ECF Percentage for the Excess Cash Flow Period then ended; provided that no such prepayment shall be required for any Excess Cash Flow Period to the extent Excess Cash Flow for such Excess Cash Flow Period was less than $10.0 million; provided, further, that the amount of such prepayment shall be further reduced (without duplication of any amount that has reduced the amount of Term Loans required to be prepaid pursuant to this clause (a) in accordance any other year) by an amount equal to the amount of Term Loans prepaid pursuant to Section 2.08 during the time period commencing at the beginning of the Excess Cash Flow Period with Subsection 4.4(grespect to which such prepayment is required and ending on the day preceding the Excess Cash Flow Application Date (in the case of a prepayment of Term Loans pursuant to Section 2.08(d), prepay limited to the Term Loans amount of cash expended), other than prepayments funded with the proceeds of the incurrence of long-term Indebtedness (other than under any revolving credit facility).
(b) On each occasion that a Prepayment Event occurs, the Borrower shall within five Business Days after the occurrence of such Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within five Business Days after the incurrence last day of any Specified Refinancing Term Loansthe Reinvestment Period relating to such Prepayment Event), the Tranche prepay, in accordance with clause (c) below, a principal amount of Term Loans being refinanced) in a Dollar Equivalent amount equal to 100.0100% of the Net Cash Proceeds from such Prepayment Event; provided that with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event or Casualty Event, the Borrower may (i) use a portion of such Net Cash Proceeds to prepay or repurchase other Indebtedness (other than Term Loans and loans and commitments under the ABL Credit Agreement or any permitted Refinancing Indebtedness in respect thereof) secured on a pari passu basis with the Obligations (and, in the case of any revolving Indebtedness, to correspondingly reduce commitments) to the extent the Borrower is required to prepay such other Indebtedness as a result of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness and the denominator of which is the sum of the outstanding principal amount of such other Indebtedness and the outstanding principal amount of Term Loans or (ii) use such Net Cash Proceeds in respect of Accounts Collateral (as such term is defined in the ABL Credit Agreement as in effect on the date hereof) to prepay Indebtedness (and correspondingly reduce commitments) under the ABL Credit Agreement or any permitted Refinancing Indebtedness in --50- respect thereof minus to the extent the Borrower is required to repay such other Indebtedness as a result of such Prepayment Event in an amount not to exceed the Net Cash Proceeds in respect of such Accounts Collateral.
(c) The Borrower shall deliver to the Agent, at the time of each prepayment required under Section 2.09(a) or (b), (i) a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least three (3) Business Days prior written notice of such prepayment. Amounts required to be applied to the prepayment of Term Loans in accordance with clauses (a) and (b) above shall be applied pro rata to prepay Term Loans under the Term Loan Facilities and shall be applied to scheduled amortization of such Term Loans as directed by the Borrower; provided that notwithstanding the foregoing, the Borrower may elect in its sole discretion to apply the Net Cash Proceeds from any Debt Incurrence Prepayment Event to prepay any Class of Term Loans selected by the Borrower. Each notice of prepayment shall specify the prepayment date, the Type of each Term Loan being prepaid and the principal amount of each Term Loan (or portion thereof) to be prepaid. Prepayments shall be accompanied by accrued interest as required by Section 2.11. All prepayments of Borrowings under this Section 2.09 shall be subject to Section 2.14 (and, in the case of a Repricing Transaction, Section 2.08(c)), but shall otherwise be without premium or penalty.
(d) [Reserved].
(e) Notwithstanding any other provisions of this Section 2.09, (A) to the extent that any of or all the Net Cash Proceeds of any Asset Sale Prepayment Event by a Foreign Subsidiary giving rise to a prepayment pursuant to Section 2.09(b) (a “Foreign Prepayment Event”) or Excess Cash Flow attributable to a Foreign Subsidiary are prohibited or delayed by any Requirement of Law from being repatriated to the Borrower with respect to Term Loans in an aggregate principal amount equal to the ECF Percentage for the Excess Cash Flow Period then ended, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.09, as the case may be, so long, but only so long, as the applicable Requirement of Law will not permit repatriation to the Borrower (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable Requirement of Law to permit such repatriation), and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirement of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than three Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result of repatriation) to the repayment of the Term Loans pursuant to this Section 2.09, and (B) to the extent that and for so long as the Borrower or has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Foreign Prepayment Event or Excess Cash Flow would have a material adverse tax consequence to the Borrower and its Subsidiaries is (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation) with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected will not be required by to be applied to repay Term Loans at the terms thereoftimes provided in this Section 2.09; provided that when the Borrower determines in good faith that repatriation of any of or all the Net Cash Proceeds of any Foreign Prepayment Event or Excess Cash Flow would no longer have a material adverse tax consequence to the Borrower and its Subsidiaries (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation) with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to such Net Cash Proceeds or Excess Cash Flow shall be promptly (and in any event not later than three Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result of repatriation) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender repayment of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal year, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00Section 2.09. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9.--51-
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Samples: Credit Agreement (Clean Harbors Inc)
Mandatory Prepayment of Term Loans. (i) The Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings the Parent Borrower or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion of such Net Cash Proceeds applied (to the extent the Parent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) ), and (iii) the Borrower Borrowers shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the first Fiscal Year commencing after the Closing Date) (which, for the avoidance of doubt, shall be the Fiscal Year beginning on January 1, 2014 and ending on or about December 31, 20162014) (each, an “ECF Payment Date”), in a Dollar Equivalent an amount equal to (A) (1A)(1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ the OpCoParent Borrower’s Excess Cash Flow for such Fiscal Year minus (2) the sum of (xw) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal year, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9.aggregate
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Mandatory Prepayment of Term Loans. (ia) The Borrower shallSubject to clause (e) hereof, the Term Loan A shall be subject to required principal reductions in accordance the amount of the Applicable Recapture Percentage of Excess Cash Flow for each fiscal quarter, such prepayments to be payable in respect of each fiscal quarter beginning with Subsection 4.4(gthe fiscal quarter ending March 31, 2011, and each fiscal quarter thereafter, and to be due 60 days following the end of such fiscal quarter, except that for the last fiscal quarter in each Fiscal Year, such payment shall be due 120 days following the end of such quarter.
(b) Subject to clause (e) hereof, immediately upon receipt by any Credit Party of any Net Cash Proceeds from any Asset Sales (other than Net Cash Proceeds of Asset Sales permitted under Section 8.4).
(c) Subject to clause (e) hereof, immediately upon receipt by any Credit Party of Net Cash Proceeds from the issuance of any Equity Interests of such Person (other than Equity Interests under any stock option or employee incentive plans listed on Schedule 6.13 hereto (or any successor plans) or Equity Interests of WSM issued to directors, officers or employees of the Borrowers or their Subsidiaries) or Net Cash Proceeds from the issuance of any Subordinated Debt after the Effective Date, Borrowers shall prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion one hundred percent (100%) of such Net Cash Proceeds from the issuance of Subordinated Debt and fifty percent (50%) of such Net Cash Proceeds from the issuance of any Equity Interests.
(d) Each mandatory prepayment under this Section 4.8 or any other mandatory or optional prepayment under this Agreement shall be in addition to any scheduled installments or optional prepayments made prior thereto, and shall be subject to Section 11.1, and shall be applied to installments of Term Loan A in the same order as set forth in Section 4.7 for voluntary prepayments (except that mandatory prepayments under Section 4.8(a) shall be made in the inverse order of maturities).
(e) To the extent that, on the date any mandatory prepayment of any Term Loan under this Section 4.8 is due, the Indebtedness under any Term Loan or any other Indebtedness to be prepaid is being carried, in whole or in part, at the Eurodollar-based Rate and no Default or Event of Default has occurred and is continuing, Borrowers may deposit the amount of such mandatory prepayment in a cash collateral account to be held by the Agent, for and on behalf of the Lenders (which shall be an interest-bearing account), on such terms and conditions as are reasonably acceptable to Agent and upon such deposit, the obligation of each Borrower to make such mandatory prepayment shall be deemed satisfied. Subject to the terms and conditions of said cash collateral account, sums on deposit in said cash collateral account shall be applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereofuntil exhausted) to prepay, repay or purchase Pari Passu Indebtedness reduce the principal balance of such Term Loan on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant each Eurodollar-Interest Period attributable to the last proviso of this clause (iii)) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal year, in each case, excluding prepayments funded with proceeds from the Incurrence of longEurodollar-term Indebtedness (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as based Advances of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9such Term Loan, thereby avoiding breakage costs under Section 11.1.
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Mandatory Prepayment of Term Loans. (i) The Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings the Borrower or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent an amount equal to 100.0100.00% of the Net Cash Proceeds thereof minus the portion of such Net Cash Proceeds applied (to the extent the Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) ), and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days no later than the 10th Business Day after the 120th day following the last day of the immediately preceding Fiscal Year (commencing with the first Fiscal Year ending on or about December 31, 2016commencing after the Closing Date) (each, an “ECF Payment Date”), in a Dollar Equivalent an amount equal to (AA)(1) (1) 50.050.00% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ the Borrower’s Excess Cash Flow for such Fiscal Year minus (2) the sum of (xw) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) prepaid pursuant to Subsection 4.4(a) and Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal year, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase constituting Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1Indebtedness) above shall be reduced pursuant to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9.Subsection
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