Mandatory Prepayment of Term Loans. (1) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), the Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made pursuant to the General Asset Sale Basket (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following receipt of such Net Cash Proceeds; provided that: (a) if at the time that any such prepayment would be required, the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans (any such Pari Passu Lien Debt and ABL Loans, “Other Applicable Indebtedness”) with such Net Cash Proceeds, then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (in the case of any revolving facilities to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly; (b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable 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) to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and (c) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid, the declined amount 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 such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding). (2) Subject to Section 2.08(6) and 2.08(9), commencing with the fiscal year ending December 31, 2019, not later than five Business Days after the Financial Officer certificate pursuant to Section 5.04(3) for the corresponding Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower will apply the following amount to the prepayment of Term Loans: (a) the Required Percentage of such Excess Cash Flow (if any); minus (b) the sum of:
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Impax Laboratories, LLC), Term Loan Credit Agreement (Amneal Pharmaceuticals, Inc.)
Mandatory Prepayment of Term Loans. The Borrower shall make mandatory principal prepayments of the Term Loans in amounts equal to:
(1i) Subject 100% of the aggregate Net Cash Proceeds from any sale or other transfer of assets made pursuant to Sections 2.08(6Section 5.7(d) or Section 5.15(b) if required by Section 5.7(d)(3) or Section 5.15(b)(ii), 2.08(8as applicable;
(ii) 100% of the aggregate Net Cash Proceeds from the incurrence of Debt (including Convertible Debt) by the Borrower or any Subsidiary after the Closing Date (other than the Net Cash Proceeds from (x) any Incremental Facility, (y) subject to the immediately succeeding proviso, Debt (including Convertible Debt) permitted to be incurred pursuant to Section 5.14 and 2.08(9(z) any Specified Incurrence); provided that, the Borrower will apply shall make mandatory principal prepayments of the Term Loans in an amount equal to 100% of all any Specified Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made pursuant to the General Asset Sale Basket extent required by Section 5.14(h) and
(iii) 100% of the aggregate Net Cash Proceeds from any issuance of Capital Stock after the Effective Date (other than any ABL Priority Collateral Asset Salesuch issuances after the Closing Date the aggregate gross proceeds of which do not exceed U.S. $200,000,000 (for the avoidance of doubt, measured exclusive of the Net Cash Proceeds from any Specified Incurrence) so long as the proceeds of such issuances shall be used by the Borrower to make Acquisitions or any Sale Leaseback Transaction to prepay Term Loans other Investments permitted hereunder). Prepayments under this clause (d) shall be made within ten three (3) Business Days following after the date of receipt of such the applicable Net Cash Proceeds; provided that:
(a) that if at the time that any such prepayment would be required, the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans (any such Pari Passu Lien Debt and ABL Loans, “Other Applicable Indebtedness”) with such Net Cash Proceeds, then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (in the case of any revolving facilities are received prior to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of Effective Date, the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will Loan Commitments shall instead be ratably reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness will not exceed by the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds will be allocated to the Proceeds. Each prepayment of the Term Loans under this clause (in accordance with the terms hereofd) to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid, the declined amount will promptly (and in any event within ten Business Days after the date of such rejection) shall be applied to prepay reduce the scheduled quarterly installments of the Term Loans in accordance direct order of maturity (and thereafter, to reduce the amount of the Term Loans payable on the Maturity Date). The Borrower may elect to utilize the option set forth in Section 2.11(c) in connection with any mandatory prepayment pursuant this clause (d). For the terms hereof (to avoidance of doubt, the extent such Net Cash Proceeds would otherwise have been required from any Specified Incurrence will not be subject to be so applied if such Other Applicable Indebtedness was not then outstanding)any of the mandatory prepayments described above.
(2) Subject to Section 2.08(6) and 2.08(9), commencing with the fiscal year ending December 31, 2019, not later than five Business Days after the Financial Officer certificate pursuant to Section 5.04(3) for the corresponding Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower will apply the following amount to the prepayment of Term Loans:
(a) the Required Percentage of such Excess Cash Flow (if any); minus
(b) the sum of:
Appears in 2 contracts
Samples: Credit Agreement (Bread Financial Holdings, Inc.), Credit Agreement (Bread Financial Holdings, Inc.)
Mandatory Prepayment of Term Loans. (1) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), the The Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made pursuant to the General Asset Sale Basket Section 6.05(2) (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback 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 an Asset Sale Proceeds Account;
(b) subject to the other provisions of this Section 2.08(1), on each Reinvestment Prepayment Date the Borrower will apply an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event to the prepayment of the Term Loans (together with accrued interest thereon); and
(c) if at the time that any such prepayment would be required, the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Indebtedness secured on a pari passu basis with the Term Loans (any such Pari Passu Lien Debt and ABL LoansIndebtedness, “Other Applicable First Lien Indebtedness”) with such Net Cash Proceeds), then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay all Classes of Term Loans and Other Applicable First Lien Indebtedness (in the case of any revolving facilities to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable First Lien Indebtedness outstanding at such time); provided, with it being agreed further, that the portion of such Net Cash Proceeds allocated to the Other Applicable First Lien Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable 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 extent such Net Cash Proceeds repurchase or repayment of Other First Lien Indebtedness, and the amount of the prepayment of the Term Loans that would have otherwise have been required pursuant to this clause (1) will be so applied if such Other Applicable Indebtedness was not then outstandingreduced accordingly; and
(c) provided further, that to the extent the holders of Other Applicable First Lien Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaidprepaid 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 such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable First Lien Indebtedness was not then outstanding).
(2) Subject to Section 2.08(6) and 2.08(9), commencing Commencing with the fiscal year ending December 31on or around January 30, 20192017, not later than five Business Days the Original Term Loan Installment Date that is closest to 90 days after the Financial Officer certificate pursuant to Section 5.04(3) end of each Excess Cash Flow Period, the Borrower will calculate Excess Cash Flow for the corresponding such Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower and will apply the following amount to the prepayment of Term Loans:
(a) the Required Percentage of such Excess Cash Flow (if any)Flow; minus
(b) the sum amount of any voluntary prepayments during such Excess Cash Flow Period or on or prior to the Original Term Loan Installment Date that is closest to the 90th day after the end of such Excess Cash Flow Period of:
(i) Term Loans (including Incremental Term Loans, Other Term Loans and Extended Term Loans);
(ii) loans under the ABL Credit Agreement (to the extent accompanied by a corresponding reduction in the commitments);
(iii) Other First Lien Indebtedness (and, in the case of any revolving indebtedness, to the extent accompanied by a corresponding reduction in the commitments); or
(iv) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness (or Permitted Refinancing Indebtedness described in this clause (iv)), in each case that is secured on a pari passu basis with the Term Loans (and, in the case of any revolving indebtedness, to the extent accompanied by a corresponding reduction in the commitments); in each case, to the extent not financed with the proceeds of the issuance or the incurrence of Indebtedness (other than proceeds of revolving loans), the sale or issuance of Equity Interests or Asset Sales; provided that any such voluntary prepayment that is made on or prior to the Original Term Loan Installment Date that is closest to the 90th day after the end of such Excess Cash Flow Period will not reduce Excess Cash Flow for the next succeeding Excess Cash Flow Period pursuant to this clause (b). Not later than the date on which the Borrower is required to deliver financial statements with respect to the end of each Excess Cash Flow Period under Section 5.04(1), the Borrower will deliver to the Administrative Agent a certificate signed by a Financial Officer of the Borrower setting forth the amount, if any, of Excess Cash Flow for such fiscal year and the calculation thereof in reasonable detail.
(3) The Borrower will apply 100% of the net cash proceeds from the incurrence, issuance or sale by the Borrower or any Restricted Subsidiary of any Indebtedness that is not Excluded Indebtedness to the prepayment of Term Loans, on or prior to the date which is five Business Days after the receipt of such net cash proceeds.
(4) Notwithstanding anything in this Section 2.08 to the contrary, any Lender may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, facsimile transmission or e-mail) at least two Business Days prior to the required prepayment date, to decline all or any portion of any mandatory prepayment of its Term Loans pursuant to this Section 2.08 (other than clause (3) of this Section 2.08), in which case the aggregate amount of the prepayment that would have been applied to prepay Term Loans but was so declined will be retained by the Borrower and applied for any permitted purpose hereunder. Such prepayments will be applied on a pro rata basis to the then outstanding Term Loans of all Classes being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurocurrency Loans; provided that if no Lenders exercise the right to waive a given mandatory prepayment of the Term Loans pursuant to this Section 2.08(4), then, with respect to such mandatory prepayment, the amount of such mandatory prepayment will be applied first to Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are Eurocurrency Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.13.
(5) The Borrower will deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.08, (a) a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (b) to the extent practicable, at least three 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 portion thereof) to be prepaid. Prepayment of the Term Loans pursuant to this Section 2.08 will be made without premium or penalty, accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment, and applied as directed by the Borrower or, absent such direction, to reduce scheduled amortization payments of Term Loans under Section 2.06(1) in direct order of maturity; provided that any prepayment of Incremental Term Loans, Other Term Loans or Extended Term Loans will be applied in the order specified in the applicable Permitted Amendment. No payments under Section 2.13 will be required in connection with a prepayment of Term Loans pursuant to this Section 2.08. In the event of any prepayment of Term Loans pursuant to this Section 2.08 at a time when Term Loans of more than one Class remain outstanding, the aggregate amount of such prepayment will be allocated between each Class of Term Loans pro rata based on the aggregate principal amount of outstanding Term Loans of each such Class (except as otherwise provided in the applicable Permitted Amendment, in each case with respect to the applicable Class of Term Loans).
(6) Notwithstanding any provisions of this Section 2.08 to the contrary,
(a) to the extent that any or all of the Net Cash Proceeds or Excess Cash Flow giving rise to a prepayment event pursuant to this Section 2.08 is prohibited or delayed by (i) applicable local law (including laws related to financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance and similar legal principles, and in respect of restrictions on upstreaming of cash intra-group and the fiduciary and statutory duties of the Board of Directors of the applicable Restricted Subsidiaries) or (ii) material organizational document restrictions as a result of minority ownership, in each case from being repatriated to the United States, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.08, but may be retained by the Borrower or the applicable Subsidiary for so long, but only so long, as the applicable local law or restriction will not permit repatriation to the United States. Once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law or restriction, such repatriation will be effected promptly and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the prepayment of the Term Loans pursuant to this
Appears in 2 contracts
Samples: Term Loan Credit Agreement (PET Acquisition LLC), Term Loan Credit Agreement (PET Acquisition LLC)
Mandatory Prepayment of Term Loans. (1a) Subject to Sections 2.08(6), 2.08(8clauses (d) and 2.08(9)(e) hereof, immediately upon receipt by any Credit Party (excluding any Foreign Subsidiaries) of any Net Cash Proceeds from any Asset Sales which are not Reinvested as described in the following sentence, the Borrower will apply shall prepay the Term Loans by an amount equal to one hundred percent (100% %) of all such excess Net Cash Proceeds provided, however that the Borrower shall not be obligated to prepay the Term Loan with (i) the first $250,000 in Net Cash Proceeds received by it in any Fiscal Year so long as no Default or any Event of its Restricted Subsidiaries in an Asset Sale made pursuant to the General Asset Sale Basket (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following receipt of such Net Cash Proceeds; provided that:
(a) if Default exists and is continuing at the time that any of such prepayment would be required, the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans Asset Sale and (any such Pari Passu Lien Debt and ABL Loans, “Other Applicable Indebtedness”ii) with such Net Cash Proceeds, then the Borrower may apply such Net Cash Proceeds to redeemif the following conditions are satisfied: (i) promptly following the sale, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (in the case of any revolving facilities Borrower provides to the extent accompanied Agent a certificate executed by a permanent reduction Responsible Officer of the corresponding commitmentBorrower (“Reinvestment Certificate”) on a pro rata basis stating (x) that the sale has occurred, (y) that no Default or more favorable basis from the perspective Event of Default has occurred and is continuing either as of the applicable Lenders) and the amount of prepayment date of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes sale or as of the preceding clause (a), pro rata basis will be determined on the basis date of the aggregate outstanding principal amount Reinvestment Certificate, and (z) a description of the Term Loans and Other Applicable Indebtedness outstanding at such timeplanned Reinvestment of the proceeds thereof, with it being agreed that (ii) the portion Reinvestment of such Net Cash Proceeds allocated 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, the Borrower shall promptly pay such remaining excess proceeds to the Other Applicable Indebtedness will not exceed Agent, to be applied to repay the Term Loan in accordance with clauses (d) and (e) hereof.
(b) Subject to clauses (d) and (e) hereof, immediately upon receipt by any Credit Party (excluding any Foreign Subsidiaries) of Net Cash Proceeds from the issuance of any Subordinated Debt after the Effective Date, the Borrower shall prepay the Term Loan by an amount equal to one hundred percent (100%) of such Net Cash Proceeds required provided, however that the Borrower shall not be obligated to be allocated to prepay the Other Applicable Indebtedness pursuant to Term Loan with the terms thereof, and the remaining amount, if any, of such first $300,000 in Net Cash Proceeds will from any such issuance received in any Fiscal Year so long as no Default or Event of Default exists and is continuing at the time of such issuance.
(c) Subject to clauses (d) and (e) hereof, immediately upon receipt by any Credit Party (excluding any Foreign Subsidiaries) of any Insurance Proceeds or Condemnation Proceeds in excess of $250,000 per year, the Borrower shall be allocated obligated to prepay the Term Loan by an amount equal to one hundred percent (100%) of such excess Insurance Proceeds or Condemnation Proceeds, as the case may be; provided, however that the Borrower shall not be obligated to prepay the Term Loan with (i) the first $250,000 in Condemnation or Insurance Proceeds received in any Fiscal Year so long as no Default or Event of Default exists and is continuing at the time of such Asset Sale and (ii) any such proceeds if the following conditions are satisfied: (i) promptly following the receipt of such Insurance Proceeds or Condemnation Proceeds, as the case may be, the Borrower provide to the 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 of such Insurance Proceeds or Condemnation Proceeds, as the case may be), (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, the Borrower shall promptly pay such remaining excess proceeds to the Agent, to be applied to repay the Term Loan in accordance with clauses (d) and (e) hereof.
(d) Subject to clause (e) hereof, 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. Each mandatory prepayment of the Term Loans (in accordance with the terms hereof) to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid, the declined amount will promptly (and in any event within ten Business Days after the date of such rejection) Loan shall be applied to prepay installments of principal on the Term Loans Loan in accordance with the terms hereof (to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding)inverse order of their maturities.
(2e) Subject to To the extent that, on the date any mandatory prepayment of any Term Loan under this Section 2.08(6) and 2.08(9)4.8 is due, commencing with the fiscal year ending December 31, 2019, not later than five Business Days after the Financial Officer certificate pursuant to Section 5.04(3) for the corresponding Excess Cash Flow Period shall have been delivered Indebtedness under any Term Loan or required any other Indebtedness to be deliveredprepaid 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, the Borrower will apply may deposit the following 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 the Agent and upon such deposit, the obligation of the 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 (until exhausted) to reduce the principal balance of the Term Loans:
(a) Loan on the Required Percentage last day of such Excess Cash Flow (if any); minus
(b) each Eurodollar-Interest Period attributable to the sum of:Eurodollar-based Advances of the Term Loan, thereby avoiding breakage costs under Section 11.1.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (GLAUKOS Corp), Revolving Credit and Term Loan Agreement (GLAUKOS Corp)
Mandatory Prepayment of Term Loans. (1) Subject to Sections 2.08(6), 2.08(8) and 2.08(9)the Orders, the Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made pursuant Term Loans shall be subject to the General Asset Sale Basket (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following receipt of such Net Cash Proceeds; provided thatmandatory prepayment provisions:
(a) On and after the Closing Date, if at any Indebtedness shall be issued or incurred by the time that Company or any such prepayment would be requiredSubsidiary (excluding any Indebtedness incurred in accordance with Section 6.18), an amount equal to 100% of the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans (any such Pari Passu Lien Debt and ABL Loans, “Other Applicable Indebtedness”) with such Net Cash Proceeds, then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (in the case of any revolving facilities to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will thereof shall be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined applied on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that the portion date of such Net Cash Proceeds allocated to the Other Applicable Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds will be allocated to issuance or incurrence toward the prepayment of the Term Loans as set forth in Section 2.6.9.
(b) No later than the fifth Business Day (or such later date agreed to by the Administrative Agent acting at the direction of the Required Lenders) following the receipt of Net Cash Proceeds in accordance respect of any Asset Sale Prepayment Event or Recovery Event (or series of related Asset Sale Prepayment Events or Recovery Events) received with respect thereto, the terms hereof) Company shall apply an amount equal to the extent 100% of such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid, the declined amount will promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the outstanding Term Loans as set forth in accordance with the terms hereof Section 2.6.9. Prepayments from, and, without duplication, of amounts equal to, Net Cash Proceeds of any Asset Sale Prepayment Event or Recovery Event by a Foreign Subsidiary (to the extent such Net Cash Proceeds would otherwise have been required to required) will be so applied if such Other Applicable Indebtedness was not then outstanding).
(2) Subject to Section 2.08(6) and 2.08(9), commencing with the fiscal year ending December 31, 2019, not later than five Business Days after the Financial Officer certificate pursuant to Section 5.04(3) for the corresponding Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower will apply the following amount limited to the extent (x) the repatriation of Foreign Subsidiaries’ funds to fund such prepayments is prohibited, restricted or delayed by applicable laws or (y) repatriation of Foreign Subsidiaries’ funds to fund such prepayment of Term Loans:
could reasonably be expected to result in material adverse tax consequences to the Company and its Subsidiaries. All mandatory prepayments are subject to permissibility under (a) in the Required Percentage case of Foreign Subsidiaries, local law restrictions (such Excess Cash Flow (if any); minus
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 Subsidiaries) and (b) with respect to non-Wholly Owned Subsidiaries, organizational document restrictions, to the sum of: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 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. 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 Subsidiaries or any of its Affiliates or equity partners and arising as a result of compliance with this paragraph.
Appears in 2 contracts
Samples: Senior Secured Superpriority Debtor in Possession Term Loan Credit Agreement (DIEBOLD NIXDORF, Inc), Senior Secured Superpriority Debtor in Possession Term Loan Credit Agreement (DIEBOLD NIXDORF, Inc)
Mandatory Prepayment of Term Loans. (1i) Subject to Sections 2.08(6The Borrower shall, in accordance with Subsection 4.4(g), 2.08(8prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)) and 2.08(9)(ii) if on or after the Closing Date, the Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made shall Incur (A) Specified Refinancing Term Loans or (B) Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to the General Asset Sale Basket (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following receipt of such Net Cash Proceeds; provided that:
(a) if at the time that any such prepayment would be requiredSubsection 8.1), the Borrower is required toshall, or to offer toin accordance with Subsection 4.4(g), repurchaseprepay (or, redeem, repay or prepay any Pari Passu Lien Debt or ABL exchange for Rollover Indebtedness) the Term Loans (any such Pari Passu Lien Debt and ABL Loansor, “Other Applicable Indebtedness”) with such Net Cash Proceeds, then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (in the case of the Incurrence of any revolving facilities Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in an amount equal to the extent accompanied by a permanent reduction 100.0% of the corresponding commitmentNet Cash Proceeds thereof (plus any portion of such Indebtedness which represents Rollover Indebtedness) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that minus the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable 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 applied (in accordance with the terms hereof) to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) to the extent the holders Borrower or any of Other Applicable its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid, the declined amount will promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay on a no more than pro rata basis with the Term Loans Loans, in accordance each case with the terms hereof (to the extent such Net Cash Proceeds would otherwise have been required prepayment to be so applied if such Other Applicable Indebtedness was not then outstandingmade on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h).
(2. Each prepayment of Initial Term Loans pursuant to this Subsection 4.4(e)(ii)(A) Subject to Section 2.08(6) and 2.08(9or Subsection 4.4(e)(ii)(B), commencing with the fiscal year ending December 31, 2019, but not later than five Business Days after the Financial Officer certificate any other prepayment of Initial Term Loans pursuant to Section 5.04(3) for this Subsection 4.4(e), made prior to August 1, 2026 shall be accompanied by the corresponding Excess Cash Flow Period shall have been delivered or required to be delivered, payment of the applicable fee designated by the Borrower will apply in its sole discretion and as required by Subsection 4.5(b). Nothing in this Subsection 4.4(e) shall limit the following amount to rights of the prepayment of Term Loans:
Agents and the Lenders set forth in Section 9. (af) the Required Percentage of such Excess Cash Flow (if any); minus
(b) the sum of:[Reserved].
Appears in 1 contract
Samples: Term Loan Credit Agreement (Cornerstone Building Brands, Inc.)
Mandatory Prepayment of Term Loans. (1i) Subject to Sections 2.08(6The Borrower shall, in accordance with Subsection 4.4(g), 2.08(8prepay the Term Loans to the extent required by Subsection 8.4(b) and 2.08(9(subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, the Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made shall Incur (A) Specified Refinancing Term Loans or (B) Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to the General Asset Sale Basket (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following receipt of such Net Cash Proceeds; provided that:
(a) if at the time that any such prepayment would be requiredSubsection 8.1), the Borrower is required toshall, or to offer toin accordance with Subsection 4.4(g), repurchaseprepay (or, redeem, repay or prepay any Pari Passu Lien Debt or ABL exchange for Rollover Indebtedness) the Term Loans (any such Pari Passu Lien Debt and ABL Loansor, “Other Applicable Indebtedness”) with such Net Cash Proceeds, then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (in the case of the Incurrence of any revolving facilities Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in an amount equal to the extent accompanied by a permanent reduction 100.0% of the corresponding commitmentNet Cash Proceeds thereof (plus any portion of such Indebtedness which represents Rollover Indebtedness) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that minus the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable 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 applied (in accordance with the terms hereof) to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) to the extent the holders Borrower or any of Other Applicable its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness decline on a no more than pro rata basis with the Term Loans, in each case with such prepayment to have such Indebtedness repurchasedbe made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, redeemedas contemplated by Subsection 4.4(h) and (iii) the Borrower shall, repaid or prepaidin accordance with Subsection 4.4(g), the declined amount will promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans within five Business Days following the day on which financial statements in accordance with respect of the terms hereof immediately preceding fiscal year are delivered pursuant to Subsection 7.1(a) (to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).
(2) Subject to Section 2.08(6) and 2.08(9), commencing with the fiscal year ending on or about December 31, 2019) (each, not later than five Business Days after the Financial Officer certificate an “ECF Payment Date”), in an amount equal to (A) (1) 50.0% (as may be adjusted pursuant to Section 5.04(3the last proviso of this clause (iii)) for of the corresponding Borrower’s Excess Cash Flow Period shall have been delivered or required to be deliveredfor such fiscal year (such amount, the Borrower will apply the following amount “Applicable ECF Amount”), if and to the extent that the Applicable ECF Amount exceeds $10,000,000, minus (2) the sum of (q) 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), 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, redeemed, repurchased or retired, Senior Notes 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) (aby 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 such fiscal year (which, in any event, shall not include any designated prepayment pursuant to clause (t), (w) or (x) below), (r) the Required Percentage 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 (y) below), (s) 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 (s) give rise to a subsequent deduction upon the making of such Excess Cash Flow Capital Expenditure in cash in the same or any subsequent fiscal year) (if anywhich, in any event, shall not include any Capital Expenditures previously deducted pursuant to clause (y) below); minus
, (bt) the sum of: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), 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, redeemed, repurchased or retired, Senior Notes 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) (which, in any event, shall not include any designated prepayment pursuant to clause (w) or (x) below), (u) 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 (v), (w) or (x) below),
Appears in 1 contract
Samples: Cash Flow Credit Agreement (Cornerstone Building Brands, Inc.)
Mandatory Prepayment of Term Loans. (1a) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), If the Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries receives Net Cash Proceeds from a Non-Ordinary Course Disposition and the pro forma Leverage Ratio, after giving effect to such Non-Ordinary Course Disposition (and all other appropriate pro forma events), but excluding the proceeds of such Non-Ordinary Course Disposition for the purposes of netting cash on hand in an Asset Sale made pursuant the foregoing calculation of the Leverage Ratio, is equal to or greater than 4.00 to 1.00, the General Asset Sale Basket Borrower shall prepay the Term Loans, within fifteen (other than any ABL Priority Collateral Asset Sale15) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following the receipt thereof, in an amount equal to 100% of such Net Cash Proceeds; provided that:
, if the pro forma Leverage Ratio, after giving effect to such Non-Ordinary Course Disposition (a) if at and all other appropriate pro forma events), but excluding the time that any proceeds of such prepayment would be requiredNon-Ordinary Course Disposition for the purposes of netting cash on hand in the foregoing calculation of the Leverage Ratio, is less than or equal to 5.00 to 1.00 and no Event of Default exists, the Borrower is required toshall be permitted to reinvest such Net Cash Proceeds to repair, replace or restore the assets disposed of pursuant to offer tosuch Non-Ordinary Course Disposition or reinvest such Net Cash Proceeds in productive assets or properties or otherwise in the business of the Borrower or its Subsidiaries (collectively, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans (any such Pari Passu Lien Debt and ABL Loans, the “Other Applicable IndebtednessReinvestment”) with within one year after receipt of such Net Cash Proceeds, then in which case, the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness shall give the Administrative Agent written notice (in the case of any revolving facilities to “Reinvestment Notice”) thereof within fifteen (15) Business Days following the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that the portion receipt of such Net Cash Proceeds. If the Borrower elects to use Net Cash Proceeds allocated for Reinvestment pursuant to the Other Applicable Indebtedness will immediately preceding sentence, within one year following the date of the Reinvestment Notice (the “Reinvestment Period”), the Borrower shall provide evidence reasonably satisfactory to the Administrative Agent that such Reinvestment has been completed on or before the end of the Reinvestment Period and, to the extent such Reinvestment has not exceed been completed, the Borrower shall prepay the Term Loans in an amount equal to the amount of such Net Cash Proceeds required to be allocated to not used for such Reinvestment. For the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amountavoidance of doubt, if anythe pro forma Leverage Ratio, after giving effect to such Non-Ordinary Course Disposition (and all other appropriate pro forma events), but excluding the proceeds of such Non-Ordinary Course Disposition for the purposes of netting cash on hand in the foregoing calculation of the Leverage Ratio, is less than 4.00 to 1.00, no prepayments under this Section 2.11 shall be required.
(b) If the Borrower or any Subsidiary issues or incurs any Indebtedness (other than Indebtedness permitted under Section 6.01), the Borrower shall prepay the Term Loans on date of such issuance or incurrence in an amount equal to 100% of the Net Cash Proceeds will be allocated to the prepayment thereof.
(c) Prepayments of the Term Loans (in accordance with the terms hereof) made pursuant to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid, the declined amount will promptly (and in any event within ten Business Days after the date of such rejection) this Section 2.11 shall be applied to prepay reduce pro rata as among the Term Loans in accordance with the terms hereof (to remaining scheduled principal installments of the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).
(2) Subject to Section 2.08(6) and 2.08(9), commencing with the fiscal year ending December 31, 2019, not later than five Business Days after the Financial Officer certificate Term Loans pursuant to Section 5.04(32.09(a)(ii) for the corresponding Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower will apply the following amount to the prepayment in reverse order of Term Loans:
(a) the Required Percentage of such Excess Cash Flow (if any); minus
(b) the sum of:maturity.
Appears in 1 contract
Mandatory Prepayment of Term Loans. (1) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), the Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made pursuant to the General Asset Sale Basket (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following receipt of such Net Cash Proceeds; provided that:
: (a) if at the time that any such prepayment would be required, the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans (any such Pari Passu Lien Debt and ABL Loans, “Other Applicable Indebtedness”) with such Net Cash Proceeds, then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (in the case of any revolving facilities to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
; (b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable 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) to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and
and (c) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid, the declined amount 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 95 US-DOCS\97700238.15141444430.9 hereof (to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).
(2) Subject to Section 2.08(6) and 2.08(9), commencing with the fiscal year ending December 31, 2019, not later than five Business Days after the Financial Officer certificate pursuant to Section 5.04(3) for the corresponding Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower will apply the following amount to the prepayment of Term Loans:
(a) the Required Percentage of such Excess Cash Flow (if any); minus
minus (b) the sum of:: (i) voluntary prepayments of Term Loans and Pari Passu Lien Debt (including those made through debt buybacks and in the case of below-par buybacks in an amount equal to the discounted amount actually paid in cash in respect thereof), in each case other than revolving Indebtedness; and (ii) loans under the ABL Credit Agreement, any ABL Incremental Facility or other revolving Pari Passu Lien Debt (to the extent accompanied by a corresponding reduction in the commitments); in each case, (x) during such Excess Cash Flow Period or following the end of such Excess Cash Flow Period and prior to the date of delivery of such Financial Officer certificate (provided that, with respect to any such amount following the end of such Excess Cash Flow Period, such amount is not included in any subsequent calculation pursuant to this clause (b)) and (y) to the extent such prepayments are not funded with the proceeds of Funded Debt; provided that no such payment shall be required if such amount is equal to or less than $15,000,000; provided, further, that: (A) if at the time that any such prepayment would be required, the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt with all or a portion of such Excess Cash Flow (any such Pari Passu Lien Debt, “Other Applicable ECF Indebtedness”), then the Borrower may apply such Excess Cash Flow to redeem, repurchase, repay or prepay Term Loans and Other Applicable ECF Indebtedness (in the case of any revolving facilities, to the extent accompanied by a permanent reduction of corresponding commitments) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(2) will be reduced accordingly; (B) for purposes of the preceding clause (A), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable ECF Indebtedness outstanding at such time, with it being agreed that the portion of such Excess Cash Flow allocated to the 96 US-DOCS\97700238.15141444430.9 Other Applicable ECF Indebtedness will not exceed the amount of such Excess Cash Flow required to be allocated to the Other Applicable ECF Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Excess Cash Flow will be allocated to the prepayment of the Term Loans in accordance with the terms hereof (to the extent such Excess Cash Flow would otherwise have been required to be so applied if such Other Applicable ECF Indebtedness was not then outstanding); and (c) to the extent the holders of Other Applicable ECF Indebtedness decline to have such indebtedness repurchased, repaid or prepaid, the declined amount 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 such Excess Cash Flow would otherwise have been required to be so applied if such Other Applicable ECF Indebtedness was not then outstanding).
(3) On the date that is the earlier of (x) 45 Business Days following the Closing Date and (y) the date of settlement of the Specified Tender Offer (such earlier date, the “Specified Tender Offer Prepayment Date”), the Borrower will prepay the Term Loans in an amount equal to the aggregate outstanding principal amount of any Impax Convertible Notes, if any, on the Specified Tender Offer Prepayment Date after giving effect to the Specified Tender Offer, if any.
(4) The Borrower will apply 100% of the Net Cash Proceeds from the incurrence, issuance or sale by the Borrower or any Restricted Subsidiary of any Indebtedness that is not Excluded Indebtedness to the prepayment of Term Loans, on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(5) Except as may otherwise be set forth in any Permitted Amendment to the extent permitted by the terms hereof, (a) each prepayment of Term Loans pursuant to Section 2.08(1), (2), (3) and (4) will be applied ratably to each Class of Term Loans then outstanding, (b) with respect to each Class of Loans, each prepayment pursuant to Section 2.08(1), (2), (3) and (4) will be applied to the then remaining scheduled installments of principal thereof pursuant to Section 2.06 as directed by the Borrower (and absent such direction, in direct order of maturity), and (c) each such prepayment shall be paid to the Lenders in accordance with their respective proportionate shares (based on each such Lender’s participation in the Term Loans prepaid).
(6) Notwithstanding anything in this Section 2.08 to the contrary, any Lender may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, facsimile transmission or e-mail) at least two Business Days prior to the required prepayment date, to decline all or any portion of any mandatory prepayment of its Term Loans pursuant to this Section 2.08 (other than clauses (3) and (4) of this Section 2.08), in which case the aggregate amount of the prepayment that would have been applied to prepay Term Loans but was so declined will be retained by the Borrower and applied for any permitted purpose hereunder. Such prepayments will be applied on a pro rata basis to the then 97 US-DOCS\97700238.15141444430.9 outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurocurrency, Term Benchmark Loans or RFR Loans.
(7) The Borrower will deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.08, (a) a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (b) to the extent 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 portion thereof) to be prepaid. Prepayment of the Term Loans pursuant to this Section 2.08 will be made without premium or penalty, accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment. No payments under Section 2.13 will be required in connection with a prepayment of Term Loans pursuant to this Section 2.08. (8) With respect to any Net Cash Proceeds received with respect to any Asset Sale that gives rise to a prepayment event pursuant to Section 2.08(1), at the option of the Borrower, the Borrower may (in lieu of making a prepayment pursuant to Section 2.08(1)) elect to reinvest (directly, or through one or more of its Restricted Subsidiaries) an amount equal to all or any portion of such Net Cash Proceeds (the “Reinvestment Deferred Amount”) in assets used or useful for the business of the Borrower and its Restricted Subsidiaries (a) within eighteen (18) months following receipt of such Net Cash Proceeds or (b) if the Borrower or any of its Restricted Subsidiaries enters into a legally binding commitment to reinvest such Net Cash Proceeds within eighteen (18) months following receipt of such Net Cash Proceeds, no later than one hundred and eighty (180) days after the end of such eighteen month period.
(9) Notwithstanding any provisions of this Section 2.08 to the contrary, (a) to the extent that a Responsible Officer of the Borrower has reasonably determined in good faith in consultation with the Administrative Agent that any or all of the Net Cash Proceeds or Excess Cash Flow giving rise to a prepayment event pursuant to Section 2.08(1), (2) or (4) is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.08, but may be retained by the Borrower or the applicable Subsidiary for so long, but only so long, as the applicable local law will not permit repatriation to the United States. Once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law, such repatriation will be effected promptly and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.08 to the extent provided herein; provided that the Borrower hereby agrees, and will cause any applicable Subsidiary, to promptly take all commercially reasonable actions required by applicable local law to permit any such repatriation; or 98 US-DOCS\97700238.15141444430.9
Appears in 1 contract
Samples: Term Loan Credit Agreement (Amneal Pharmaceuticals, Inc.)
Mandatory Prepayment of Term Loans. (1a) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), the The Borrower will shall apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made pursuant to the General Asset Sale Basket (other than any Net Cash Proceeds of ABL Priority Collateral Asset SaleSales) or any Sale Leaseback Transaction to prepay Term Loans Loans:
(i) within ten five Business Days following actual receipt of such Net Cash ProceedsProceeds from an Asset Sale or Recovery Event (unless the Borrower shall have delivered a Reinvestment Notice on or prior to such fifth Business Day); provided that:that (A) on or prior to the fifth Business Day following receipt thereof, such Net Cash Proceeds shall be deposited in an Asset Sale Proceeds Account, and (B) notwithstanding the foregoing, on each Reinvestment Prepayment Date an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Term Loans (together with accrued interest thereon); and
(aii) within one Business Day following receipt of Net Cash Proceeds from the incurrence, issuance or sale by the Borrower or any Restricted Subsidiary of any Indebtedness (other than Excluded Indebtedness); provided, in the case of both (i) and (ii) above, if at the time that any such prepayment would be required, the Borrower is shall be required to, or to offer to, repurchase, redeem, repurchase or redeem or repay or prepay any Pari Passu Lien Debt Credit Agreement Refinancing Indebtedness or ABL Loans Indebtedness permitted under Section 6.01(b), in each case, that is secured on a pari passu basis with or senior to the Obligations pursuant to the terms of the documentation governing such Indebtedness with the proceeds of such Asset Sale, Recovery Event or incurrence, issuance or sale of Indebtedness (any such Pari Passu Lien Debt and ABL LoansCredit Agreement Refinancing Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”) with such Net Cash Proceeds)), then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (in the case of any revolving facilities to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time); provided, with it being agreed further, that the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness will shall not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds will shall be allocated to the prepayment of the Term Loans (in accordance with the terms hereof) to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding); and
(c) provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repurchased or repaid or prepaidwith such Net Cash Proceeds, the declined amount will of such Net Cash Proceeds shall promptly (and in any event within ten 10 Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).
(2b) Subject to Section 2.08(6) and 2.08(9), commencing Commencing with the fiscal year ending December 31, 20192014, not later than five Business Days after the Financial Officer certificate pursuant to Section 5.04(3) for date on which the corresponding Excess Cash Flow Period shall have been delivered or Borrower is required to be delivered, the Borrower will apply the following amount deliver financial statements with respect to the prepayment of Term Loans:
(a) the Required Percentage end of such Excess Cash Flow Period under Section 5.04(a), the Borrower shall calculate Excess Cash Flow for the relevant Excess Cash Flow Period (if any); minus
the “Excess Cash Flow Calculation Date”) and shall prepay the Term Loans in an amount equal to (i) the Required Percentage times the amount of such Excess Cash Flow, minus (ii) to the extent not financed with the proceeds of the incurrence of Indebtedness having a maturity not less than 12 months from the date of incurrence thereof and not previously deducted pursuant to this clause (b) in any prior period, the sum of:amount of any voluntary prepayments during such Excess Cash Flow Period or on or prior to the Excess Cash Flow Calculation Date of (A) Term Loans (provided, that with respect to any prepayment of Term Loans below the par value thereof, the aggregate amount of such prepayment for purposes of this clause shall be the amount of the Borrower’s cash payment in respect of such prepayment), (B) revolving loans under the ABL Credit Agreement or any Incremental ABL Loans (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments), (C) Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Facilities, Incremental Equivalent Term Debt and Indebtedness permitted under Section 6.01(b) that in each case is secured by the Collateral on a pari passu basis with the Obligations and (D) any Permitted Refinancing Indebtedness in respect of any of the foregoing that is secured by the same collateral, and with the same priority, as the Indebtedness being refinanced, in each case, permitted hereunder.
(c) Notwithstanding anything in this Section 2.09 to the contrary, any Lender may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, facsimile transmission or PDF attachment to an e-mail) at least one Business Day prior to the required prepayment date, to decline all or any portion of any mandatory prepayment of its Term Loans pursuant to this Section 2.09, in which case the aggregate amount of the prepayment that would have been applied to prepay Term Loans but was so declined may be retained by the Borrower and used for any general corporate purpose not prohibited by this Agreement.
(d) Prepayment of the Term Loans from Net Cash Proceeds and Excess Cash Flow shall be applied without penalty or premium (but subject to Section 2.14) as directed by the Borrower (or, absent such direction, in direct order of maturity of Term Loans under Section 2.07(a)); provided that any Incremental Term Loans, Other Term Loans or Extended Term Loans shall be applied in the order specified in the applicable Permitted Amendment.
(e) Notwithstanding the foregoing provisions of this Section 2.09, to the extent any Net Cash Proceeds or Excess Cash Flow is attributable to a Foreign Subsidiary, each payment pursuant to Section 2.09(a) and Section 2.09(b) shall not be required to the extent repatriation of such amounts (a) would be prohibited or restricted under applicable local law and (b) would result or reasonably be expected to result in material adverse tax consequences (including, as a result of any withholding tax or the upstreaming of cash) to any Parent Entity, the Borrower or any Subsidiary as determined in good faith by the Borrower at the time the corresponding payments would otherwise be required to be made pursuant to Section 2.09(a) or 2.09(b). The non-application of the prepayment amounts as a consequence of this Section 2.09(e) will not, for the avoidance of doubt, constitute a Default or an Event of Default, and such amounts shall be available for working capital or other purposes of the applicable Foreign Subsidiary (or any other Foreign Subsidiary).
(f) Any prepayments required after the application of this Section 2.09 shall be net of any costs, expenses or Taxes incurred by the Borrower or any of its Affiliates or Restricted Subsidiaries as a result of complying with this Section 2.09, and the Borrower and the Restricted Subsidiaries be permitted to make, directly or indirectly, dividends or distributions, to their Affiliates and Parent Entities to cover such Tax liability, costs or expenses.
Appears in 1 contract
Mandatory Prepayment of Term Loans. (1a) Subject to Sections 2.08(6On and after the Closing Date, if any Indebtedness shall be issued or incurred by the Company or any Subsidiary (excluding any Indebtedness incurred in accordance with Section 6.18), 2.08(8) and 2.08(9), the Borrower will apply an amount equal to 100% of all the Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made pursuant to thereof shall be applied on the General Asset Sale Basket (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following receipt date of such Net Cash Proceeds; provided that:
(a) if at the time that any such prepayment would be required, the Borrower is required to, issuance or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans (any such Pari Passu Lien Debt and ABL Loans, “Other Applicable Indebtedness”) with such Net Cash Proceeds, then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (in the case of any revolving facilities to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds will be allocated to incurrence toward the prepayment of the Term Loans as set forth in Section 2.6.9.
(in accordance with b) On and after the terms hereofClosing Date, if the Company or any Subsidiary shall receive Net Cash Proceeds from any Asset Sale Prepayment Event or Recovery Event (or series of related Asset Sale Prepayment Events or Recovery Events) to the extent then 100% of such Net Cash Proceeds would otherwise have been required to less any Reinvestment Deferred Amount (if applicable) shall be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) on or prior to the extent fifth Business Day after such receipt (or in the holders case of Other Applicable Indebtedness decline an Asset Sale Prepayment Event or Recovery Event (or series of related Asset Sale Prepayment Events or Recovery Events) in an amount less than or equal to have such Indebtedness repurchased$25,000,000, redeemed, repaid on or prepaid, prior to the declined amount will promptly (and in any event within ten date five Business Days after the date the financial statements for the fiscal quarter in which the aggregate amount of Net Cash Proceeds for all such rejectionAsset Sale Prepayment Events or Recovery Events for the four consecutive fiscal quarter period ending with such fiscal quarter exceed $25,000,000 are required to be delivered pursuant to Section 6.1(i) be applied to prepay or (ii)), toward the prepayment of the Term Loans as set forth in accordance 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 terms hereof relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 2.6.9. Prepayments from, and, without duplication, of amounts equal to, Net Cash Proceeds of any Asset Sale Prepayment Event or Recovery Event by a Foreign Subsidiary (to the extent such Net Cash Proceeds would otherwise have been required to required) will be so applied if such Other Applicable Indebtedness was not then outstanding).
(2) Subject to Section 2.08(6) and 2.08(9), commencing with the fiscal year ending December 31, 2019, not later than five Business Days after the Financial Officer certificate pursuant to Section 5.04(3) for the corresponding Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower will apply the following amount limited to the prepayment of Term Loans:
extent (ax) the Required Percentage repatriation of Foreign Subsidiaries’ funds to fund such Excess Cash Flow (if any); minus
(b) the sum of:prepayments is prohibited, restricted or delayed by applicable laws or
Appears in 1 contract
Mandatory Prepayment of Term Loans. (1) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), the Borrower The Borrowers will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries after the Closing Date in an Asset Sale made pursuant to the General Asset Sale Basket Section 6.05(2) (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following receipt of such Net Cash Proceeds, unless Holdings 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 an Asset Sale Proceeds Account;
(b) subject to the other provisions of this Section 2.08(1), on each Reinvestment Prepayment Date the Borrowers will apply an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event to the prepayment of the Term Loans (together with accrued interest thereon); and
(c) if at the time that any such prepayment would be required, the Borrower Borrowers is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Indebtedness secured on a pari passu basis with the Term Loans (any such Pari Passu Lien Debt and ABL LoansIndebtedness, “Other Applicable First Lien Indebtedness”) with such Net Cash Proceeds), then the Borrower Borrowers may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay all Classes of Term Loans and Other Applicable First Lien Indebtedness (in the case of any revolving facilities to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable First Lien Indebtedness outstanding at such time); provided, with it being agreed further, that the portion of such Net Cash Proceeds allocated to the Other Applicable First Lien Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable 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 extent such Net Cash Proceeds repurchase or repayment of Other First Lien Indebtedness on a pro rata basis, and the amount of the prepayment of the Term Loans that would have otherwise have been required pursuant to this clause (1) will be so applied if such Other Applicable Indebtedness was not then outstandingreduced accordingly; and
(c) provided, further, that to the extent the holders of Other Applicable First Lien Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaidprepaid 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 such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable First Lien Indebtedness was not then outstanding).
(2) Subject to Section 2.08(6) and 2.08(9), commencing with the fiscal year ending December 31, 2019, not later than five Business Days after the Financial Officer certificate pursuant to Section 5.04(3) for the corresponding Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower will apply the following amount to the prepayment of Term Loans:
(a) the Required Percentage of such Excess Cash Flow (if any); minus
(b) the sum of:
Appears in 1 contract
Mandatory Prepayment of Term Loans. (1b) Subject to Sections 2.08(6), 2.08(8) and 2.08(9)On each occasion that a Prepayment Event occurs, the Borrower will apply 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 last day of the Reinvestment Period relating to suchPrepayment Event), prepay, in accordance with clause (c) below, a principal amount of Term Loansequal to 100% of all the Net Cash Proceeds received by it or any from such Prepayment Event; provided that with respect to theNet Cash Proceeds of its Restricted Subsidiaries in an Asset Sale made pursuant to the General Asset Sale Basket (other than any ABL Priority Collateral Asset Sale) Prepayment Event or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following receipt of such Net Cash Proceeds; provided that:
(a) if at the time that any such prepayment would be requiredCasualty Event, the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans may (any such Pari Passu Lien Debt and ABL Loans, “Other Applicable Indebtedness”i) with such Net Cash Proceeds, then the Borrower may apply use aportion of such Net Cash Proceeds to redeem, repurchase, repay prepay or prepay Term Loans and Other Applicable 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 of any ofany revolving facilities Indebtedness, to correspondingly reduce commitments) to the extent accompanied by the Borrower isrequired to prepay such other Indebtedness as a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that the portion result of such Net Cash Proceeds allocated Prepayment Event, in each case in anamount not to exceed the Other Applicable Indebtedness will not exceed product of (x) the amount of such Net Cash Proceeds required to be allocated to multiplied by (y) afraction, the Other Applicable numerator of which is the outstanding principal amount of such other Indebtedness pursuant to and thedenominator of which is the terms thereof, sum of the outstanding principal amount of such other Indebtedness and the remaining amount, if any, theoutstanding principal amount of Term Loans or (ii) use such Net Cash Proceeds will in respect of AccountsCollateral (as such term is defined in the ABL Credit Agreement as in effect on the date hereof) toprepay Indebtedness (and correspondingly reduce commitments) under the ABL Credit Agreement orany permitted Refinancing Indebtedness in respect thereof to the extent the Borrower is required to repaysuch other Indebtedness as a result of such Prepayment Event in an amount not to exceed the Net CashProceeds in respect of such Accounts Collateral.
(c) The Borrower shall deliver to the 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 and (ii) to the extentpracticable, at least three (3) Business Days prior written notice of such prepayment. Amounts requiredto be allocated applied to the prepayment of the Term Loans (in accordance with the terms hereof) to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid, the declined amount 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 clauses (a) and (b) above shall beapplied pro rata to prepay Term Loans under the terms hereof 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 each Term Loan (or portion thereof) to be 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 such thatany of or all the Net Cash Proceeds would otherwise have been required of any Asset Sale Prepayment Event by a Foreign Subsidiary givingrise to be so applied if such Other Applicable Indebtedness was not then outstanding).
(2) Subject to Section 2.08(6) and 2.08(9), commencing with the fiscal year ending December 31, 2019, not later than five Business Days after the Financial Officer certificate a prepayment pursuant to Section 5.04(32.09(b) for the corresponding (a “Foreign Prepayment Event”) or Excess Cash Flow Period shall have been delivered Flowattributable to a Foreign Subsidiary are prohibited or required to be delivered, the Borrower will apply the following amount to the prepayment delayed by any Requirement of Term Loans:
(a) the Required Percentage of such Excess Cash Flow (if any); minus
(b) the sum of:Law from being-60-
Appears in 1 contract
Samples: Incremental Facility Amendment to Credit Agreement (Clean Harbors Inc)
Mandatory Prepayment of Term Loans. (1a) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), the The Borrower will shall apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made pursuant to the General Asset Sale Basket (other than any Net Proceeds of ABL Priority Collateral Asset SaleSales and Net Proceeds described in clause (c) or any Sale Leaseback Transaction of the definition of “Net Proceeds”) to prepay Term Loans within ten five Business Days following receipt of such Net Cash ProceedsProceeds (unless the Borrower shall have delivered a Reinvestment Notice on or prior to such fifth Business Day); provided that:
that (ai) on or prior to the fifth Business Day following receipt thereof, such Net Proceeds shall be deposited in an Asset Sale Proceeds Account, (ii) notwithstanding the foregoing, in the case of Net Proceeds received from an Asset Sale or a Recovery Event, on each Reinvestment Prepayment Date an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Term Loans (together with accrued interest thereon), (iii) if at the time that any such prepayment would be required, the Borrower is shall be required to, or to offer to, repurchase, redeem, repurchase or redeem or repay or prepay any Pari Passu Credit Agreement Refinancing Indebtedness, Indebtedness permitted under Section 6.01(b) or Indebtedness that is subject to a Lien Debt permitted under Section 6.02(t)(i), in each case, that is secured on a pari passu basis with the Obligations pursuant to the terms of the documentation governing such Indebtedness with proceeds of such Asset Sale or ABL Loans Recovery Event (any such Pari Passu Lien Debt and ABL LoansCredit Agreement Refinancing Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”) with such Net Cash Proceeds)), then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (in the case of any revolving facilities to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time) and (iv) no payments under Section 2.14 shall be required in connection with any prepayment under this clause (a); provided, with it being agreed further, that the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness will shall not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds will shall be allocated to the prepayment of the Term Loans (in accordance with the terms hereof) to the extent such Net Cash Proceeds prepayment of the Term Loans and to the repurchase or repayment of Other Applicable Indebtedness, and the amount of the prepayment of the Term Loans that would have otherwise have been required pursuant to this clause (a) shall be so applied if such Other Applicable Indebtedness was not then outstandingreduced accordingly; and
(c) provided further, that to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repurchased or repaid or prepaidwith such Net Proceeds, the declined amount will of such Net Proceeds shall 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 such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).
(2b) Subject to Section 2.08(6) and 2.08(9), commencing Commencing with the fiscal year ending December 3129, 20192013, not later than five Business Days 90 days after the Financial Officer certificate pursuant to Section 5.04(3) end of each Excess Cash Flow Period, the Borrower shall calculate Excess Cash Flow for the corresponding such Excess Cash Flow Period and shall have been delivered or required apply an amount equal to be delivered, the Borrower will apply the following amount to the prepayment of Term Loans:
(ai) the Required Percentage of such Excess Cash Flow, minus (ii) to the extent not financed with the proceeds of the incurrence of Indebtedness having a maturity not less than 12 months from the date of incurrence thereof, the amount of any voluntary prepayments during such Excess Cash Flow Period or on or prior to the 90th day after the end of such Excess Cash Flow Period of (A) Term Loans, (B) revolving loans under the ABL Credit Agreement, any Incremental ABL Loans or other revolving credit facility (to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments) and (C) Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Facilities, Incremental Equivalent First Lien Term Debt, Indebtedness permitted under Section 6.01(b) or Indebtedness subject to a Lien permitted under Section 6.02(t)(i), and any Permitted Refinancing Indebtedness in respect of any of the foregoing, in each case, permitted hereunder. Not later than the date on which the Borrower is required to deliver financial statements with respect to the end of each Excess Cash Flow Period under Section 5.04(a), the Borrower will deliver to the Administrative Agent a certificate signed by a Financial Officer of the Borrower setting forth the amount, if any); minus, of Excess Cash Flow for such fiscal year and the calculation thereof in reasonable detail.
(bc) Notwithstanding anything in this Section 2.09 to the sum of:contrary, any Lender may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, facsimile transmission or e-mail) at least one Business Day prior to the required prepayment date, to decline all or any portion of any mandatory prepayment of its Term Loans pursuant to this Section 2.09, in which case the aggregate amount of the prepayment that would have been applied to prepay Term Loans but was so declined shall be retained by the Borrower.
Appears in 1 contract
Mandatory Prepayment of Term Loans. (1i) Subject to Sections 2.08(6The Borrower shall, in accordance with Subsection 4.4(g), 2.08(8prepay the Term Loans to the extent required by Subsection 8.4(b) and 2.08(9(subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, the Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made shall Incur (A) Specified Refinancing Term Loans or (B) Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to the General Asset Sale Basket (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following receipt of such Net Cash Proceeds; provided that:
(a) if at the time that any such prepayment would be requiredSubsection 8.1), the Borrower is required toshall, or to offer toin accordance with Subsection 4.4(g), repurchaseprepay (or, redeem, repay or prepay any Pari Passu Lien Debt or ABL exchange for Rollover Indebtedness) the Term Loans (any such Pari Passu Lien Debt and ABL Loansor, “Other Applicable Indebtedness”) with such Net Cash Proceeds, then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (in the case of the Incurrence of any revolving facilities Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in an amount equal to the extent accompanied by a permanent reduction 100.0% of the corresponding commitmentNet Cash Proceeds thereof (plus any portion of such Indebtedness which represents Rollover Indebtedness) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that minus the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable 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 applied (in accordance with the terms hereof) to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) to the extent the holders Borrower or any of Other Applicable its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness decline on a no more than pro rata basis with the Term Loans, in each case with such prepayment to have such Indebtedness repurchasedbe made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, redeemedas contemplated by Subsection 4.4(h) and (iii) the Borrower shall, repaid or prepaidin accordance with Subsection 4.4(g), the declined amount will promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans within five Business Days following the day on which financial statements in accordance with respect of the terms hereof immediately preceding fiscal year are delivered pursuant to Subsection 7.1(a) (to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).
(2) Subject to Section 2.08(6) and 2.08(9), commencing with the fiscal year ending on or about December 31, 2019) (each, not later than five Business Days after the Financial Officer certificate an “ECF Payment Date”), in an amount equal to (A) (1) 50.0% (as may be adjusted pursuant to Section 5.04(3the last proviso of this clause (iii)) for of the corresponding Borrower’s Excess Cash Flow Period for such fiscal year (such amount, the “Applicable ECF Amount”), if and to the extent that the Applicable ECF Amount exceeds $10,000,000, minus (2) the sum of (q) 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), 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, redeemed, repurchased or retired, Senior Notes 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 such fiscal year (which, in any event, shall not include any designated prepayment pursuant to clause (t), (w) or (x) below), (r) 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 (y) below), (s) 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 delivered 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 (s) 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 (y) below), (t) 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), 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, redeemed, repurchased or retired, Senior Notes 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) (which, in any event, shall not include any designated prepayment pursuant to clause (w) or (x) below), (u) 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 (v), (w) or (x) below), (v) 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 (w) or (x) below), (w) the aggregate principal amount of Revolving Loans (including Incremental Revolving Loans, Extended Revolving Loans and Specified Refinancing Revolving Loans) prepaid pursuant to Subsection 4.4(b) and the aggregate principal amount of ABL Facility Loans prepaid, in each case during such fiscal year, to the extent such amounts were drawn to fund any “flex” OID or additional upfront fees in respect of the Initial 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 (x) below), (x) the aggregate principal amount of Revolving Loans (including Incremental Revolving Loans, Extended Revolving Loans and Specified Refinancing Revolving Loans) prepaid pursuant to Subsection 4.4(b) and the aggregate principal amount of ABL Facility Loans prepaid, 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, to the extent such amounts were drawn to fund any “flex” OID or additional upfront fees in respect of the Initial Term Loans or any Incremental Term Loans and stated by the Borrower as prepaid pursuant to this Subsection 4.4(e)(iii) and (y) 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 deliveredpaid 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 (iii) 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 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 Borrower will apply the following amount of such shortfall shall be added to the prepayment calculation of 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 Subsection 4.4(e)(iii)(A)(2)(q), (r), (s), (t), (u), (v), (w), (x) or (y)), in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (unless, in the case of clause (r) or (s), 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 (a) 25.0% if the Required Percentage Consolidated Secured Leverage Ratio as of such Excess Cash Flow (if any); minus
the last day of the immediately preceding fiscal year was less than 4.25:1.00, after giving pro forma effect to the applicable prepayment with the Applicable ECF Amount pursuant to this Subsection 4.4(e)(iii) and (b) 0.0% if the sum of:Consolidated Secured Leverage Ratio as of the last day of the immediately preceding fiscal year was less than 3.75:1.00, 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, any applicable Consolidated Secured Leverage Ratio threshold specified in the immediately foregoing proviso, such reduced percentage shall apply. 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 one year 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 Section 9.
Appears in 1 contract
Samples: Cash Flow Credit Agreement (Cornerstone Building Brands, Inc.)
Mandatory Prepayment of Term Loans. (1a) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), If the Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries receives Net Cash Proceeds from a Non-Ordinary Course Disposition and the pro forma Leverage Ratio, after giving effect to such Non-Ordinary Course Disposition (and all other appropriate pro forma events), but excluding the proceeds of such Non-Ordinary Course Disposition for the purposes of netting cash on hand in an Asset Sale made pursuant the foregoing calculation of the Leverage Ratio, is equal to or greater than 3.75 to 1.00, the General Asset Sale Basket Borrower shall prepay the Term Loans, within fifteen (other than any ABL Priority Collateral Asset Sale15) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following the receipt thereof, in an amount equal to 100% of such Net Cash Proceeds; provided that:
, if the pro forma Leverage Ratio, after giving effect to such Non-Ordinary Course Disposition (a) if at and all other appropriate pro forma events), but excluding the time that any proceeds of such prepayment would be requiredNon-Ordinary Course Disposition for the purposes of netting cash on hand in the foregoing calculation of the Leverage Ratio, is less than or equal to 4.25 to 1.00, the Borrower is required toshall be permitted to reinvest such Net Cash Proceeds to repair, replace or restore the assets disposed of pursuant to offer tosuch Non-Ordinary Course Disposition or reinvest such Net Cash Proceeds in productive assets or properties or otherwise in the business of the Borrower or its Subsidiaries (collectively, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans (any such Pari Passu Lien Debt and ABL Loans, the “Other Applicable IndebtednessReinvestment”) with within one year after receipt of such Net Cash Proceeds, then in which case, the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness shall give the Administrative Agent written notice (in the case of any revolving facilities to “Reinvestment Notice”) thereof within fifteen (15) Business Days following the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that the portion receipt of such Net Cash Proceeds. If the Borrower elects to use Net Cash Proceeds allocated for Reinvestment pursuant to the Other Applicable Indebtedness will immediately preceding sentence, within one year following the date of the Reinvestment Notice (the “Reinvestment Period”), the Borrower shall provide evidence reasonably satisfactory to the Administrative Agent that such Reinvestment has been completed on or before the end of the Reinvestment Period and, to the extent such Reinvestment has not exceed been completed, the Borrower shall prepay the Term Loans in an amount equal to the amount of such Net Cash Proceeds required to be allocated to not used for such Reinvestment. For the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amountavoidance of doubt, if anythe pro forma Leverage Ratio, after giving effect to such Non-Ordinary Course Disposition (and all other appropriate pro forma events), but excluding the proceeds of such Non-Ordinary Course Disposition for the purposes of netting cash on hand in the foregoing calculation of the Leverage Ratio, is less than 3.75 to 1.00, no prepayments under this Section 2.11 shall be required.
(b) If the Borrower or any Subsidiary issues or incurs any Indebtedness (other than Indebtedness permitted under Section 6.01), the Borrower shall prepay the Term Loans on date of such issuance or incurrence in an amount equal to 100% of the Net Cash Proceeds will be allocated to the prepayment thereof.
(c) Prepayments of the Term Loans (in accordance with the terms hereof) made pursuant to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid, the declined amount will promptly (and in any event within ten Business Days after the date of such rejection) this Section 2.11 shall be applied to prepay reduce pro rata as among the Term Loans in accordance with the terms hereof (to remaining scheduled principal installments of the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).
(2) Subject to Section 2.08(6) and 2.08(9), commencing with the fiscal year ending December 31, 2019, not later than five Business Days after the Financial Officer certificate Term Loans pursuant to Section 5.04(32.09(a)(ii) for the corresponding Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower will apply the following amount to the prepayment in reverse order of Term Loans:
(a) the Required Percentage of such Excess Cash Flow (if any); minus
(b) the sum of:maturity.
Appears in 1 contract
Samples: Credit Agreement (Service Corporation International)
Mandatory Prepayment of Term Loans. (1) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), the Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made pursuant to the General Asset Sale Basket (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following receipt of such Net Cash Proceeds; provided that:
(a) if at Within 365 days after the time that receipt of any such prepayment would be requiredNet Proceeds from a Disposition of Collateral pursuant to Section 6.05(a), the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans (any such Pari Passu Lien Debt and ABL Loans, “Other Applicable Indebtedness”) with such Net Cash Proceeds, then the Borrower may apply such Net Cash Proceeds Proceeds:
(i) to redeem, repurchase, purchase or replace other Qualified Replacement Assets;
(ii) to repay or prepay Term Loans Priority Lien Debt; or
(iii) to make a capital expenditure with respect to assets that constitute Collateral; provided that the Borrower will be deemed to have complied with the provision described in clauses (i) and Other Applicable Indebtedness (in the case iii) of any revolving facilities this paragraph if and to the extent accompanied by that, within 365 days after the sale or other Disposition that generated the Net Proceeds, the Borrower has entered into and not abandoned or rejected a permanent reduction of binding agreement to acquire the corresponding commitment) on assets that would constitute Collateral or make a pro rata basis capital expenditure in compliance with the provision described in clauses (or more favorable basis from the perspective of the applicable Lendersi) and (iii) of this paragraph, and that acquisition, purchase or capital expenditure is thereafter completed within 90 days after the amount end of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;such 365-day period.
(b) for purposes Any Net Proceeds from the such Disposition that are not applied or invested as provided in Section 2.12(a), together with any Net Proceeds that are earlier designated as “Excess Proceeds” by the Borrower, will constitute “Excess Proceeds.” Within five days of the preceding clause date on which the aggregate amount of Excess Proceeds exceeds $100,000,000 (aor earlier if the Borrower so elects), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of Borrower shall prepay the Term Loans and Other Applicable Indebtedness outstanding will make an offer to purchase and/or repay, prepay or redeem, as applicable, to holders of notes and all holders of other Priority Lien Debt containing provisions similar to those set forth in the Credit Agreement and the Indenture with respect to offers to purchase or prepay any other Priority Lien Debt requiring repayment or prepayment (collectively, whether through an offer or a required prepayment, a “Collateral Disposition Offer”); provided that the percentage of such Excess Proceeds applied to prepay the Lenders in such Collateral Disposition Offer shall equal the percentage of the aggregate principal amount of all Priority Lien Debt represented at such timetime by the Term Loans. The prepayment amount in such Collateral Disposition Offer will be equal to 100% of the principal amount, with it being agreed that the portion of such Net Cash Proceeds allocated plus accrued and unpaid interest to the Other Applicable Indebtedness date of purchase, prepayment or redemption, subject to the rights of holders of notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Collateral Disposition Offer, the Borrower may use such Excess Proceeds for any purpose not exceed otherwise prohibited by the Credit Agreement. Upon completion of each Collateral Disposition Offer, the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Excess Proceeds will be allocated to the prepayment of the Term Loans (in accordance with the terms hereof) to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; andreset at zero.
(c) to Within 30 days following the extent the holders date upon which a Change of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaidControl Triggering Event has occurred, the declined amount will promptly (and in any event within ten Business Days after the date of such rejection) be applied to Borrower shall prepay the Term Loans in accordance with full.
(d) All prepayments under this Section 2.12(a) and (b) shall be accompanied by the terms hereof Applicable Premium (to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).
(2) Subject to Section 2.08(6prepayments occur during the first year following the Closing Date) and 2.08(9), commencing with all prepayments under this Section 2.12 shall be accompanied by accrued but unpaid interest on the fiscal year ending December 31, 2019, principal amount being prepaid to (but not later than five Business Days after the Financial Officer certificate pursuant to Section 5.04(3) for the corresponding Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower will apply the following amount to the prepayment of Term Loans:
(aincluding) the Required Percentage date of such Excess Cash Flow (if any); minus
(b) the sum of:prepayment, plus Fees and any losses, costs and expenses, as more fully described in Sections 2.15 and 2.19 hereof.
Appears in 1 contract
Mandatory Prepayment of Term Loans. (1) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), the Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made pursuant to the General Asset Sale Basket (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following receipt of such Net Cash Proceeds; provided that:
(a) if at the time that any such prepayment would be required, the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans (any such Pari Passu Lien Debt and ABL Loans, “Other Applicable Indebtedness”) with such Net Cash Proceeds, then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (in the case of any revolving facilities to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable 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) to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid, the declined amount 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 such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).
(2) Subject to Section 2.08(6) and 2.08(9), commencing with the fiscal year ending December 31, 20192023, not later than five Business Days after the Financial Officer certificate pursuant to Section 5.04(3) for the corresponding Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower will apply the following amount to the prepayment of Term Loans:
(a) the Required Percentage of such Excess Cash Flow (if any); minus
(b) the sum of:
(i) voluntary prepayments of Term Loans and Pari Passu Lien Debt (including those made through debt buybacks and in the case of below-par buybacks in an amount equal to the discounted amount actually paid in cash in respect thereof), in each case other than revolving Indebtedness; and
(ii) loans under the ABL Credit Agreement, any ABL Incremental Facility or other revolving Pari Passu Lien Debt (to the extent accompanied by a corresponding reduction in the commitments); in each case, (x) during such Excess Cash Flow Period or following the end of such Excess Cash Flow Period and prior to the date of delivery of such Financial Officer certificate (provided that, with respect to any such amount following the end of such Excess Cash Flow Period, such amount is not included in any subsequent calculation pursuant to this clause (b)) and (y) to the extent such prepayments are not funded with the proceeds of Funded Debt; provided that no such payment shall be required if such amount is equal to or less than $13,250,000; provided, further, that:
(A) if at the time that any such prepayment would be required, the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt with all or a portion of such Excess Cash Flow (any such Pari Passu Lien Debt, “Other Applicable ECF Indebtedness”), then the Borrower may apply such Excess Cash Flow to redeem, repurchase, repay or prepay Term Loans and Other Applicable ECF Indebtedness (in the case of any revolving facilities, to the extent accompanied by a permanent reduction of corresponding commitments) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(2) will be reduced accordingly;
(B) for purposes of the preceding clause (A), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable ECF Indebtedness outstanding at such time, with it being agreed that the portion of such Excess Cash Flow allocated to the Other Applicable ECF Indebtedness will not exceed the amount of such Excess Cash Flow required to be allocated to the Other Applicable ECF Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Excess Cash Flow will be allocated to the prepayment of the Term Loans in accordance with the terms hereof (to the extent such Excess Cash Flow would otherwise have been required to be so applied if such Other Applicable ECF Indebtedness was not then outstanding); and
(c) to the extent the holders of Other Applicable ECF Indebtedness decline to have such indebtedness repurchased, repaid or prepaid, the declined amount 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 such Excess Cash Flow would otherwise have been required to be so applied if such Other Applicable ECF Indebtedness was not then outstanding).
(3) [Reserved].
(4) The Borrower will apply 100% of the Net Cash Proceeds from the incurrence, issuance or sale by the Borrower or any Restricted Subsidiary of any Indebtedness that is not Excluded Indebtedness to the prepayment of Term Loans, on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(5) Except as may otherwise be set forth in any Permitted Amendment to the extent permitted by the terms hereof, (a) each prepayment of Term Loans pursuant to Section 2.08(1), (2), (3) and (4) will be applied ratably to each Class of Term Loans then outstanding, (b) with respect to each Class of Loans, each prepayment pursuant to Section 2.08(1), (2), (3) and (4) will be applied to the then remaining scheduled installments of principal thereof pursuant to Section 2.06 as directed by the Borrower (and absent such direction, in direct order of maturity), and (c) each such prepayment shall be paid to the Lenders in accordance with their respective proportionate shares (based on each such Lender’s participation in the Term Loans prepaid).
(6) Notwithstanding anything in this Section 2.08 to the contrary, any Lender may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, facsimile transmission or e-mail) at least two Business Days prior to the required prepayment date, to decline all or any portion of any mandatory prepayment of its Term Loans pursuant to this Section 2.08 (other than clauses (3) and (4) of this Section 2.08), in which case the aggregate amount of the prepayment that would have been applied to prepay Term Loans but was so declined will be retained by the Borrower and applied for any permitted purpose hereunder. Such prepayments will be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans, Term Benchmark Loans or RFR Loans.
(7) The Borrower will deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.08, (a) a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (b) to the extent 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 portion thereof) to be prepaid. Prepayment of the Term Loans pursuant to this Section 2.08 will be made without premium or penalty, accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment. No payments under Section 2.13 will be required in connection with a prepayment of Term Loans pursuant to this Section 2.08.
(8) With respect to any Net Cash Proceeds received with respect to any Asset Sale that gives rise to a prepayment event pursuant to Section 2.08(1), at the option of the Borrower, the Borrower may (in lieu of making a prepayment pursuant to Section 2.08(1)) elect to reinvest (directly, or through one or more of its Restricted Subsidiaries) an amount equal to all or any portion of such Net Cash Proceeds (the “Reinvestment Deferred Amount”) in assets used or useful for the business of the Borrower and its Restricted Subsidiaries (a) within twelve (12) months following receipt of such Net Cash Proceeds or (b) if the Borrower or any of its Restricted Subsidiaries enters into a legally binding commitment to reinvest such Net Cash Proceeds within twelve (12) months following receipt of such Net Cash Proceeds, no later than one hundred and eighty (180) days after the end of such twelve (12) month period; provided that, the reinvestment right under this Section 2.08(8) will not apply in the case of an Asset Sale to a person other than the Borrower or a Restricted Subsidiary of (1) any portion of the Borrower’s Equity Interests in Rondo Acquisition or (2) a significant portion of the assets of Rondo Acquisition and its Subsidiaries in a non-ordinary course transaction.
(9) Notwithstanding any provisions of this Section 2.08 to the contrary,
(a) to the extent that a Responsible Officer of the Borrower has reasonably determined in good faith in consultation with the Administrative Agent that any or all of the Net Cash Proceeds or Excess Cash Flow giving rise to a prepayment event pursuant to Section 2.08(1), (2) or (4) is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.08, but may be retained by the Borrower or the applicable Subsidiary for so long, but only so long, as the applicable local law will not permit repatriation to the United States. Once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law, such repatriation will be effected promptly and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.08 to the extent provided herein; provided that the Borrower hereby agrees, and will cause any applicable Subsidiary, to promptly take all commercially reasonable actions required by applicable local law to permit any such repatriation; or
(b) to the extent that a Responsible Officer of the Borrower has reasonably determined in good faith in consultation with the Administrative Agent that repatriation of any of or all the Net Cash Proceeds or Excess Cash Flow giving rise to a prepayment event pursuant to this Section 2.08 would have an adverse tax cost consequence, then in each case the Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.08, but may be retained by the Borrower or the applicable Subsidiary without being repatriated. The non- application of Net Cash Proceeds as a consequence of this Section 2.08 will not constitute an Event of Default under this Agreement. Such amounts shall not be deemed to be Net Cash Proceeds, regardless of whether the limitations set forth above in clauses (a) or (b) cease to apply after such initial determination.
(c) For purposes of this Section 2.08(9), references to “law” mean, with respect to any Person, (A) the common law and any federal, state, local, foreign, multinational or international statutes, laws, treaties, judicial decisions, standards, rules and regulations, guidances, guidelines, ordinances, rules, judgments, writs, orders, decrees, codes, plans, injunctions, permits, concessions, grants, franchises, governmental agreements and governmental restrictions (including administrative or judicial precedents or authorities), in each case whether now or hereafter in effect, and (B) the interpretation or administration thereof by, and other determinations, directives, requirements or requests of, any Governmental Authority, in each case whether or not having the force of law and that are applicable to or binding (or purported to be binding) upon such Person, its Subsidiaries or any of its or their property or to which such Person, any of its Subsidiaries or any of its or their property is subject (or purported to be subject).
Appears in 1 contract
Samples: Term Loan Credit Agreement (Amneal Pharmaceuticals, Inc.)
Mandatory Prepayment of Term Loans. (1a) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), the Borrower will apply 100% Immediately upon receipt by a Company or any Subsidiary of all any Net Cash Proceeds received by it or from any of its Restricted Subsidiaries in an Asset Sale made pursuant to the General Asset Sale Basket (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to , the Company shall prepay the Term Loans within ten Business Days following receipt by an amount equal to one hundred percent (100%) of such Net Cash Proceeds; provided that:.
(ab) if Mandatory prepayments under this Section 5.8 shall be in addition to any scheduled installments or optional prepayments made prior thereto and shall be subject to Section 12. Each mandatory prepayment of a Term Loan shall be applied to the principal payments due thereunder in the inverse order of their maturities as follows: first to any portion of the Term Loan bearing interest at the time that Prime-based Rate, next to any such prepayment would be required, portion of the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans (any such Pari Passu Lien Debt and ABL Loans, “Other Applicable Indebtedness”) with such Net Cash ProceedsTerm Loan bearing interest at the Eurodollar-based Rate which have Interest Periods ending on the date of payment, then to any remaining Eurodollar-based portion of the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loan. All prepayments of the Term Loans and Other Applicable Indebtedness (in the case of any revolving facilities hereunder shall be made to the Agent for distribution ratably to the Banks.
(c) To the extent accompanied by a permanent reduction of that, on the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of date any mandatory prepayment of the Term Loans that would have otherwise been required pursuant to under this Section 2.08(1) will 5.8 is due, the Indebtedness under the Term Notes or any other Indebtedness to be reduced accordingly;
(b) 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, the Company may deposit the amount of such mandatory prepayment in a cash collateral account to be held by the Agent, for purposes and on behalf of the preceding clause Banks (awhich shall be an interest-bearing account), pro rata basis will on such terms and conditions as are reasonably acceptable to Agent and the Majority Banks. Subject to the terms and conditions of said cash collateral account, sums on deposit in said cash collateral account shall be determined on applied (until exhausted) to reduce the basis of the aggregate outstanding principal amount balance of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that on the portion last day of such Net Cash Proceeds allocated each Interest Period attributable to the Other Applicable Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds will be allocated to the prepayment Eurodollar-based advances of the Term Loans (in accordance with the terms hereof) to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid, the declined amount 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 such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding)Loans.
(2) Subject to Section 2.08(6) and 2.08(9), commencing with the fiscal year ending December 31, 2019, not later than five Business Days after the Financial Officer certificate pursuant to Section 5.04(3) for the corresponding Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower will apply the following amount to the prepayment of Term Loans:
(a) the Required Percentage of such Excess Cash Flow (if any); minus
(b) the sum of:
Appears in 1 contract
Samples: Credit Agreement (Mce Companies Inc)
Mandatory Prepayment of Term Loans. (1) Subject to Sections 2.08(6the priority of Liens and application of funds set forth in the DIP Financing Order with respect to the Collateral (or any other asset of Holdings and its Subsidiaries that is purported to be Collateral pursuant to the DIP Financing Orders) that is sold or otherwise disposed of pursuant to any Asset Sale (other than any Asset Sale made under Section 6.05(2) or (3), 2.08(8) and 2.08(9), the Borrower Borrowers will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made pursuant to the General Asset Sale Basket (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to prepay prepayment of Term Loans within ten five (5) Business Days following receipt of such Net Cash ProceedsProceeds provided that, so long as no Default or Event of Default is then continuing, Holdings shall be entitled to deliver a Reinvestment Notice on or prior to such fifth Business Day; provided further that:
: (a) if at the time that any such prepayment would be requiredpending reinvestment, the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans (any such Pari Passu Lien Debt and ABL Loans, “Other Applicable Indebtedness”) with such Net Cash Proceeds, then the Borrower may apply all such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (shall be deposited in the case of any revolving facilities DIP Account; and (b) subject to the extent accompanied by a permanent reduction other provisions of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis on each Reinvestment Prepayment Date the Administrative Agent will be determined on apply an amount from the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that the portion of such Net Cash Proceeds allocated DIP Account equal to the Other Applicable Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated Reinvestment Prepayment Amount with respect to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds will be allocated relevant Reinvestment Event to the prepayment of the Term Loans (in accordance together with the terms hereof) to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid, the declined amount 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 such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstandingaccrued interest thereon).
(2) [Reserved].
(3) Subject to Section 2.08(6) the priority of Liens and 2.08(9)application of funds set forth in the DIP Financing Orders, commencing with the fiscal year ending December 31, 2019, not later than five Business Days Borrowers will apply 100% of the Net Cash Proceeds received after the Financial Officer certificate pursuant to Section 5.04(3) for Closing Date from the corresponding Excess Cash Flow Period shall have been delivered incurrence, issuance or required to be delivered, the Borrower will apply the following amount sale by Holdings or any Subsidiary of any Indebtedness that is not Excluded Indebtedness to the prepayment of Term Loans:, on or prior to the date that is five (5) Business Days after the receipt of such Net Cash Proceeds.
(4) All prepayments hereunder will be applied on a pro rata basis to the then outstanding Term Loans of all Classes being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or SOFR Loans; provided that the amount of such mandatory prepayment will be applied first to Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are SOFR Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.13.
(5) Notwithstanding anything in this Section 2.08 to the contrary, any Lender may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, facsimile transmission or e-mail) at least two (2) Business Days prior to the required prepayment date, to decline all or any portion of any mandatory prepayment of its Term Loans pursuant to this Section 2.08, in which case the aggregate amount of the prepayment that would have been applied to prepay Term Loans but was so declined will be deposited in the DIP Account and applied in accordance with the Approved Budget.
(6) [Reserved].
(7) [Reserved].
(8) The Borrowers will deliver to the Administrative Agent, three (3) Business Days prior to each prepayment required under this Section 2.08, a certificate signed by a Financial Officer of such Borrowers setting forth in reasonable detail the calculation of the amount 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 portion thereof) to be prepaid. Prepayment of the Term Loans pursuant to this Section 2.08 will be made without premium or penalty, accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment.
(9) With respect to any prepayment required in this Section 2.08, notwithstanding any provisions of this Section 2.08 to the contrary,
(a) to the Required Percentage extent that any or all of the Net Cash Proceeds giving rise to a prepayment event pursuant to this Section 2.08 is prohibited or delayed by (i) applicable local law (including laws related to financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance and similar legal principles, and in respect of restrictions on upstreaming of cash intra-group and the fiduciary and statutory duties of the Board of Directors of the applicable Subsidiaries) from being repatriated to the relevant Borrower(s) or (ii) material organizational document restrictions (other than with respect to Wholly-Owned Subsidiaries), the portion of such Excess Net Cash Flow Proceeds so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.08, but may be retained by the Borrowers or the applicable Subsidiary for so long, but only so long, as the applicable local law or restriction will not permit repayment or repatriation to the relevant Borrower(s), as applicable. Once such repatriation or repayment of any of such affected Net Cash Proceeds is permitted under the applicable local law or restriction (if anyand the Borrowers hereby agree to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of Holdings and its Subsidiaries to make the relevant prepayment), such repatriation or repayment will be effected promptly and such repatriated or repaid Net Cash Proceeds will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.08 to the extent provided herein; minusprovided that, in the case of a local law restriction on repatriation, each Borrower hereby agrees, and will cause any applicable Subsidiary, to promptly take all commercially reasonable actions required by applicable local law to permit any such repatriation; or
(b) to the sum extent that a Responsible Officer of Holdings has reasonably determined in good faith that repatriation or repayment of any of or all the Net Cash Proceeds giving rise to a prepayment event pursuant to this Section 2.08 would have a material adverse tax consequence (taking into account any foreign tax credit or benefit actually realized in connection therewith) or be prohibited due to such material organizational document restrictions as a result of minority ownership or applicable law, the Net Cash Proceeds so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.08, but may be retained by the applicable Borrower or the applicable Subsidiary without being repatriated or repaid, as applicable; provided that, once such repatriation or repayment of any of such affected Net Cash Proceeds would no longer be prohibited or have such adverse tax consequences, such repatriation or repayment will be effected promptly and such repatriated or repaid Net Cash Proceeds will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.08 to the extent provided herein. Holdings hereby agrees to promptly take and cause such Subsidiaries to promptly take all commercially reasonable actions to eliminate or minimize any such material adverse Tax consequences in furtherance of allowing the repatriation of such Net Cash Proceeds, provided that in no event will Holding be required to undertake any action that would result in any material costs or Taxes payable by the Holding or its Affiliates. For purposes of this Section 2.08(9), references to “law” mean, with respect to any Person, (1) the common law and any federal, state, local, foreign, multinational or international statutes, laws, treaties, judicial decisions, standards, rules and regulations, guidances, guidelines, ordinances, rules, judgments, writs, orders, decrees, codes, plans, injunctions, permits, concessions, grants, franchises, governmental agreements and governmental restrictions (including administrative or judicial precedents or authorities), in each case whether now or hereafter in effect, and (2) the interpretation or administration thereof by, and other determinations, directives, requirements or requests of:, any Governmental Authority, in each case whether or not having the force of law and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Term Loan Credit Agreement (Venator Materials PLC)
Mandatory Prepayment of Term Loans. (1a) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), If the Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries receives Net Cash Proceeds from a Non-Ordinary Course Disposition and the pro forma Leverage Ratio, after giving effect to such Non-Ordinary Course Disposition (and all other appropriate pro forma events), but excluding the proceeds of such Non-Ordinary Course Disposition for the purposes of netting cash on hand in an Asset Sale made pursuant the foregoing calculation of the Leverage Ratio, is equal to or greater than 3.75 to 1.00, the General Asset Sale Basket Borrower shall prepay the Term Loans, within fifteen (other than any ABL Priority Collateral Asset Sale15) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following the receipt thereof, in an amount equal to 100% of such Net Cash Proceeds; provided that:
, if the pro forma Leverage Ratio, after giving effect to such Non-Ordinary Course Disposition (a) if at and all other appropriate pro forma events), but excluding the time that any proceeds of such prepayment would be requiredNon-Ordinary Course Disposition for the purposes of netting cash on hand in the foregoing calculation of the Leverage Ratio, is less than or equal to 4.75 to 1.00 and no Event of Default exists, the Borrower is required toshall be permitted to reinvest such Net Cash Proceeds to repair, replace or restore the assets disposed of pursuant to offer tosuch Non-Ordinary Course Disposition or reinvest such Net Cash Proceeds in productive assets or properties or otherwise in the business of the Borrower or its Subsidiaries (collectively, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans (any such Pari Passu Lien Debt and ABL Loans, the “Other Applicable IndebtednessReinvestment”) with within one year after receipt of such Net Cash Proceeds, then in which case, the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness shall give the Administrative Agent written notice (in the case of any revolving facilities to “Reinvestment Notice”) thereof within fifteen (15) Business Days following the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that the portion receipt of such Net Cash Proceeds. If the Borrower elects to use Net Cash Proceeds allocated for Reinvestment pursuant to the Other Applicable Indebtedness will immediately preceding sentence, within one year following the date of the Reinvestment Notice (the “Reinvestment Period”), the Borrower shall provide evidence reasonably satisfactory to the Administrative Agent that such Reinvestment has been completed on or before the end of the Reinvestment Period and, to the extent such Reinvestment has not exceed been completed, the Borrower shall prepay the Term Loans in an amount equal to the amount of such Net Cash Proceeds required to be allocated to not used for such Reinvestment. For the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amountavoidance of doubt, if anythe pro forma Leverage Ratio, after giving effect to such Non-Ordinary Course Disposition (and all other appropriate pro forma events), but excluding the proceeds of such Non-Ordinary Course Disposition for the purposes of netting cash on hand in the foregoing calculation of the Leverage Ratio, is less than 3.75 to 1.00, no prepayments under this Section 2.11 shall be required.
(b) If the Borrower or any Subsidiary issues or incurs any Indebtedness (other than Indebtedness permitted under Section 6.01), the Borrower shall prepay the Term Loans on date of such issuance or incurrence in an amount equal to 100% of the Net Cash Proceeds will be allocated to the prepayment thereof.
(c) Prepayments of the Term Loans (in accordance with the terms hereof) made pursuant to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid, the declined amount will promptly (and in any event within ten Business Days after the date of such rejection) this Section 2.11 shall be applied to prepay reduce pro rata as among the Term Loans in accordance with the terms hereof (to remaining scheduled principal installments of the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).
(2) Subject to Section 2.08(6) and 2.08(9), commencing with the fiscal year ending December 31, 2019, not later than five Business Days after the Financial Officer certificate Term Loans pursuant to Section 5.04(32.09(a)(ii) for the corresponding Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower will apply the following amount to the prepayment in reverse order of Term Loans:
(a) the Required Percentage of such Excess Cash Flow (if any); minus
(b) the sum of:maturity.
Appears in 1 contract
Mandatory Prepayment of Term Loans. (1i) Subject to Sections 2.08(6The Borrower shall, in accordance with Subsection 4.4(c), 2.08(8prepay the Term Loans to the extent required by Subsection 8.4(b) and 2.08(9(subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, the Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made shall Incur (A) Specified Refinancing Loans or (B) Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to the General Asset Sale Basket (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following receipt of such Net Cash Proceeds; provided that:
(a) if at the time that any such prepayment would be requiredSubsection 8.1), the Borrower is required toshall, in accordance with Subsection 4.4(c), prepay (or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL exchange for Rollover Indebtedness) the Term Loans (any such Pari Passu Lien Debt and ABL Loansor, “Other Applicable Indebtedness”) with such Net Cash Proceeds, then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (in the case of the Incurrence of any revolving facilities Specified Refinancing Loans, the Tranche of Term Loans being refinanced) in an amount equal to the extent accompanied by a permanent reduction 100.0% of the corresponding commitmentNet Cash Proceeds thereof (plus any portion of such Indebtedness which represents Rollover Indebtedness) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that minus the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable 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 applied or offered (in accordance with the terms hereof) to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) to the extent the holders Borrower or any of Other Applicable its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness decline on a no more than pro rata basis with the Term Loans, in each case with such prepayment to have such Indebtedness repurchasedbe made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, redeemedas contemplated by Subsection 4.4(d) and (iii) the Borrower shall, repaid or prepaidin accordance with Subsection 4.4(c), the declined amount will promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans within five Business Days following the day on which financial statements in accordance respect of the immediately preceding Fiscal Year are delivered pursuant to Subsection 7.1(a) (commencing with the terms hereof Fiscal Year ending on or about October 31, 2019) (each, an “ECF Payment Date”), in an amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of the Borrower’s Excess Cash Flow for such Fiscal Year, if and to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).
(2) Subject to Section 2.08(6) and 2.08(9), commencing with that the fiscal year ending December 31, 2019, not later than five Business Days after the Financial Officer certificate pursuant to Section 5.04(3) for the corresponding Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower will apply the following amount to the prepayment of Term Loans:
(a) the Required Percentage of such Excess Cash Flow exceeds $7,500,000, minus (if any); minus
(b2) the sum of:of (t) 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), Incremental Revolving Loans 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 Loans) pursuant to Subsection 4.4(h) or 11.6(h) (by the Borrower or its Restricted Subsidiaries) (provided that such deduction for prepayments pursuant to Subsection 4.4(h) 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 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 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 that 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 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 Loans) pursuant to Subsection 4.4(h) or 11.6(h) (by the Borrower or its Restricted Subsidiaries) (provided that such deduction for prepayments pursuant to Subsection 4.4(h) 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(b)(iii), (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 as prepaid pursuant to this Subsection 4.4(b)(iii) and (z) at the Borrower’s election, without duplication of amounts deducted from Excess Cash Flow pursuant to this Subsection 4.4(b)(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 (iii) 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 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 shortfall shall be added to the calculation of 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(b) shall be included in Subsection 4.4(b)(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 was less than 2.50:1.00. Each prepayment of Initial Term Loans pursuant to Subsection 4.4(b)(ii)(A), but not any other prepayment of Initial Term Loans pursuant to Subsection 4.4(b), made on or prior to the six 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 and constituting Specified Refinancing Loans, shall be accompanied by the payment of the fee required by Subsection 4.5(b). Nothing in this Subsection 4.4(b) shall limit the rights of the Agents and the Lenders set forth in Section 9.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Nci Building Systems Inc)
Mandatory Prepayment of Term Loans. (1) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), the Borrower The Borrowers will apply 100% of an amount equal to all Net Cash Proceeds received by it or any of its Restricted Subsidiaries after the Closing Date in an Asset Sale made pursuant to the General Asset Sale Basket Section 6.05(2) (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to prepay the prepayment of Term Loans within ten five (5) Business Days following receipt of such Net Cash Proceeds, unless Holdings has delivered a Reinvestment Notice on or prior to such fifth (5th) Business Day; provided that:
(a) if at on or prior to the time that any such prepayment would be requiredfifth (5th) Business Day following receipt thereof, the Borrower is required topending reinvestment, or an amount equal to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans (any such Pari Passu Lien Debt and ABL Loans, “Other Applicable Indebtedness”) with such Net Cash Proceeds, then the Borrower may apply all such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (shall be deposited in the case of any revolving facilities to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;Proceeds Account; and
(b) for purposes subject to the other provisions of the preceding clause (athis Section 2.08(1), pro rata basis on each Reinvestment Prepayment Date the Borrowers will be determined on the basis of the aggregate outstanding principal apply an amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that the portion of such Net Cash Proceeds allocated equal to the Other Applicable Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated Reinvestment Prepayment Amount with respect to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds will be allocated relevant Reinvestment Event to the prepayment of the Term Loans (in accordance together with the terms hereof) to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid, the declined amount 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 such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstandingaccrued interest thereon).
(2) Subject [Reserved].
(3) The Borrowers will apply an amount equal to Section 2.08(6) and 2.08(9), commencing with 100% of the fiscal year ending December 31, 2019, not later than five Business Days Net Cash Proceeds received after the Financial Officer certificate pursuant to Section 5.04(3) for Closing Date from the corresponding Excess Cash Flow Period shall have been delivered incurrence, issuance or required to be delivered, the Borrower will apply the following amount sale by Holdings or any of its Subsidiaries of any Indebtedness that is not Excluded Indebtedness to the prepayment of Term Loans:, on or prior to the date that is five (5) Business Days after the receipt of such Net Cash Proceeds.
(4) [Reserved].
(5) [Reserved].
(6) [Reserved].
(7) Notwithstanding anything in this Section 2.08 to the contrary, any Lender may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, facsimile transmission or e-mail) at least two (2) Business Days prior to the required prepayment date, to decline all or any portion of any mandatory prepayment of its Term Loans pursuant to this Section 2.08, in which case the aggregate amount of the prepayment that would have been applied to prepay Term Loans but was so declined will be retained by the Borrowers and applied for any permitted purpose hereunder. Such prepayments will be applied on a pro rata basis to the then outstanding Term Loans of all Classes being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or SOFR Loans; provided that the amount of such mandatory prepayment will be applied first to Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are SOFR Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.13.
(8) The Borrowers will deliver to the Administrative Agent, three (3) Business Days prior to each prepayment required under this Section 2.08, a certificate signed by a Financial Officer of such Borrowers setting forth in reasonable detail the calculation of the amount 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 portion thereof) to be prepaid. Prepayment of the Term Loans pursuant to this Section 2.08 will be made without premium or penalty, accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment; provided that any prepayment of Incremental Term Loans, Other Term Loans or Extended Term Loans will be applied in the order specified in the applicable Permitted Amendment. No payments under Section 2.13 will be required in connection with a prepayment of Term Loans pursuant to this Section 2.08. In the event of any prepayment of Term Loans pursuant to this Section 2.08 at a time when Term Loans of more than one Class remain outstanding, the aggregate amount of such prepayment will be allocated between each Class of Term Loans pro rata based on the aggregate principal amount of outstanding Term Loans of each such Class (except as otherwise provided in the applicable Permitted Amendment, in each case with respect to the applicable Class of Term Loans).
(9) With respect to any prepayment required by this Section 2.08, notwithstanding any provisions of this Section 2.08 to the contrary,
(a) to the Required Percentage extent that any or all of the Net Cash Proceeds giving rise to a prepayment event pursuant to this Section 2.08 is prohibited or delayed by (i) applicable local law (including laws related to financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance and similar legal principles, and in respect of restrictions on upstreaming of cash intra-group and the fiduciary and statutory duties of the Board of Directors of the applicable Subsidiaries) from being repatriated to the relevant Borrower(s) or (ii) material organizational document restrictions (other than with respect to Wholly-Owned Subsidiaries), the portion of such Excess Net Cash Flow Proceeds so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.08, but may be retained by the Borrowers or the applicable Subsidiary for so long, but only so long, as the applicable local law or restriction will not permit repayment or repatriation to the relevant Borrower(s), as applicable. Once such repatriation or repayment of any of such affected Net Cash Proceeds is permitted under the applicable local law or restriction (if anyand the Borrowers hereby agree to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of Holdings and its Subsidiaries to make the relevant prepayment), such repatriation or repayment will be effected promptly and such repatriated or repaid Net Cash Proceeds will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.08 to the extent provided herein; minusprovided that, in the case of a local law restriction on repatriation, each Borrower hereby agrees, and will cause any applicable Subsidiary, to promptly take all commercially reasonable actions required by applicable local law to permit any such repatriation; or
(b) to the sum extent that a Responsible Officer of Holdings has reasonably determined in good faith that repatriation or repayment of any of or all the Net Cash Proceeds giving rise to a prepayment event pursuant to this Section 2.08 would have a material adverse Tax consequence (taking into account any foreign tax credit or benefit actually realized in connection therewith) or be prohibited due to such material organizational document restrictions as a result of minority ownership or applicable law, the Net Cash Proceeds so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.08, but may be retained by the applicable Borrower or the applicable Subsidiary without being repatriated or repaid, as applicable; provided that, once such repatriation or repayment of any of such affected Net Cash Proceeds would no longer be prohibited or have such adverse tax consequences, such repatriation or repayment will be effected promptly and such repatriated or repaid Net Cash Proceeds will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.08 to the extent provided herein. Holdings hereby agrees to promptly take and cause such Subsidiaries to promptly take all commercially reasonable actions to eliminate or minimize any such material adverse Tax consequences in furtherance of allowing the repatriation of such Net Cash Proceeds. For purposes of this Section 2.08(9), references to “law” mean, with respect to any Person, (1) the common law and any federal, state, local, foreign, multinational or international statutes, laws, treaties, judicial decisions, standards, rules and regulations, guidance, guidelines, ordinances, rules, judgments, writs, orders, decrees, codes, plans, injunctions, permits, concessions, grants, franchises, governmental agreements and governmental restrictions (including administrative or judicial precedents or authorities), in each case whether now or hereafter in effect, and (2) the interpretation or administration thereof by, and other determinations, directives, requirements or requests of:, any Governmental Authority, in each case whether or not having the force of law and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
Appears in 1 contract
Mandatory Prepayment of Term Loans. (1i) Subject Asset Sale Proceeds. No later than one hundred twenty (120) days following any Borrower's receipt thereof, 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 Sections 2.08(6), 2.08(8one hundred percent (100%) and 2.08(9), of the Borrower will apply 100% of all aggregate Net Cash Proceeds received from the sale or other disposition or series of related sales or other dispositions of assets by it any Borrower or any of its Restricted Subsidiaries in an pursuant to Section 11.6(f) ("Asset Sale made pursuant to the General Asset Sale Basket (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following receipt of such Net Cash Proceeds"); provided that:
(a) if at the time that any such prepayment would shall not be required, the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans (any such Pari Passu Lien Debt and ABL Loans, “Other Applicable Indebtedness”) with such Net Cash Proceeds, then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (in the case of any revolving facilities to the extent accompanied by a permanent reduction that such Asset Sale 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 corresponding commitment) on a pro rata basis (or more favorable basis foregoing to the contrary, upon and during the continuance of an Event of Default and upon notice from the perspective of Administrative Agent, all Asset Sale Proceeds received by the applicable Lenders) Borrowers and the amount of prepayment their Subsidiaries shall be applied to make prepayments of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a)Loans, pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness will not exceed the amount of such Net Cash Proceeds required prepayments to be allocated to the Other Applicable 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 made within three (in accordance with the terms hereof3) to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid, the declined amount will promptly (and in any event within ten Business Days after the date of receipt of Asset Sale Proceeds.
(ii) Insurance Proceeds. No later than one hundred twenty (120) days following the date of receipt by any Borrower or any of its Subsidiaries 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)(v) of the Security Agreement ("Insurance Proceeds") which have not been reinvested as of such rejection) be applied date to prepay replace or restore the damaged property to which such Insurance 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)(v) of the terms hereof Security Agreement). Such prepayment shall be made within one hundred twenty (120) days after the date of receipt of such Insurance Proceeds. Notwithstanding any of the foregoing to the extent contrary, upon and during the continuance of an Event of Default and upon notice from the Administrative Agent, all Insurance Proceeds received by the Borrowers and their Subsidiaries shall be applied to make prepayments of the Term Loans, such Net Cash Proceeds would otherwise have been required prepayments to be so applied if such Other Applicable Indebtedness was not then outstanding).
made within three (23) Subject to Section 2.08(6) and 2.08(9), commencing with the fiscal year ending December 31, 2019, not later than five Business Days after the Financial Officer certificate pursuant to Section 5.04(3) for the corresponding Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower will apply the following amount to the prepayment date of Term Loans:
(a) the Required Percentage receipt of such Excess Cash Flow (if any); minus
(b) the sum of:Insurance Proceeds.
Appears in 1 contract
Mandatory Prepayment of Term Loans. (1) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), the Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made pursuant to the General Asset Sale Basket (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following receipt of such Net Cash Proceeds; provided that:
(a) if at Within 365 days after the time that receipt of any such prepayment would be requiredNet Proceeds from a Disposition of Collateral pursuant to Section 6.05(a), the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans (any such Pari Passu Lien Debt and ABL Loans, “Other Applicable Indebtedness”) with such Net Cash Proceeds, then the Borrower may apply such Net Cash Proceeds Proceeds:
(i) to redeem, repurchase, purchase or replace other Qualified Replacement Assets;
(ii) to repay Priority Lien Debt; or
(iii) to make a capital expenditure with respect to assets that constitute Collateral; would constitute Collateral or prepay Term Loans and Other Applicable Indebtedness make a capital expenditure in compliance with the provision described in clauses (in the case of any revolving facilities to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lendersi) and (iii) of this paragraph, and that acquisition, purchase or capital expenditure is thereafter completed within 90 days after the amount end of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;such 365-day period.
(b) for purposes Any Net Proceeds from the such Disposition that are not applied or invested as provided in Section 2.12(a), together with any Net Proceeds that are earlier designated as “Excess Proceeds” by the Borrower, will constitute “Excess Proceeds.” Within five days of the preceding clause date on which the aggregate amount of Excess Proceeds exceeds $100,000,000 (aor earlier if the Borrower so elects), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of Borrower shall prepay the Term Loans and Other Applicable Indebtedness outstanding will make an offer to purchase and/or repay, prepay or redeem, as applicable, to holders of notes and all holders of other Priority Lien Debt containing provisions similar to those set forth in the Credit Agreement and the Indenture with respect to offers to purchase or prepay any other Priority Lien Debt requiring repayment or prepayment (collectively, whether through an offer or a required prepayment, a “Collateral Disposition Offer”); provided that the percentage of such Excess Proceeds applied to prepay the Lenders in such Collateral Disposition Offer shall equal the percentage of the aggregate principal amount of all Priority Lien Debt represented at such timetime by the Term Loans. The prepayment amount in such Collateral Disposition Offer will be equal to 100% of the principal amount, with it being agreed that the portion of such Net Cash Proceeds allocated plus accrued and unpaid interest to the Other Applicable Indebtedness date of purchase, prepayment or redemption, subject to the rights of holders of notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Collateral Disposition Offer, the Borrower may use such Excess Proceeds for any purpose not exceed otherwise prohibited by the Credit Agreement. Upon completion of each Collateral Disposition Offer, the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Excess Proceeds will be allocated to the prepayment of the Term Loans (in accordance with the terms hereof) to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; andreset at zero.
(c) to Within 30 days following the extent the holders date upon which a Change of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaidControl Triggering Event has occurred, the declined amount will promptly (and in any event within ten Business Days after the date of such rejection) be applied to Borrower shall prepay the Term Loans in accordance with full.
(d) All prepayments under this Section 2.12(a) and (b) shall be accompanied by the terms hereof Applicable Premium (to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).
(2) Subject to Section 2.08(6prepayments occur during the first year following the Closing Date) and 2.08(9), commencing with all prepayments under this Section 2.12 shall be accompanied by accrued but unpaid interest on the fiscal year ending December 31, 2019, principal amount being prepaid to (but not later than five Business Days after the Financial Officer certificate pursuant to Section 5.04(3) for the corresponding Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower will apply the following amount to the prepayment of Term Loans:
(aincluding) the Required Percentage date of such Excess Cash Flow (if any); minus
(b) the sum of:prepayment, plus Fees and any losses, costs and expenses, as more fully described in Sections 2.15 and 2.19 hereof.
Appears in 1 contract
Samples: Term Loan Credit Agreement
Mandatory Prepayment of Term Loans. (1) Subject to Sections 2.08(6), 2.08(8) and 2.08(9)the last paragraph of this Section 2.08, the Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made pursuant to the General Asset Sale Basket Section 6.05(2) (other than Net Cash Proceeds attributable to any ABL Priority Collateral Asset Sale) or any Sale Leaseback 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 an Asset Sale Proceeds Account;
(b) subject to the other provisions of this Section 2.08(1), on each Reinvestment Prepayment Date the Borrower will apply an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event to the prepayment of the Term Loans (together with accrued interest thereon); and
(c) if at the time that any such prepayment would be required, the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Indebtedness secured on a pari passu basis with the Term Loans (any such Pari Passu Lien Debt and ABL LoansIndebtedness, “Other Applicable Second Lien Indebtedness”) with such Net Cash Proceeds), then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay all Classes of Term Loans and Other Applicable Second Lien Indebtedness (in the case of any revolving facilities to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Second Lien Indebtedness outstanding at such time); provided, with it being agreed further, that the portion of such Net Cash Proceeds allocated to the Other Applicable Second Lien Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Second 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 extent such Net Cash Proceeds repurchase or repayment of Other Second Lien Indebtedness, and the amount of the prepayment of the Term Loans that would have otherwise have been required pursuant to this clause (1) will be so applied if such Other Applicable Indebtedness was not then outstandingreduced accordingly; and
(c) provided, further, that to the extent the holders of Other Applicable Second Lien Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaidprepaid 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 such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Second Lien Indebtedness was not then outstanding).
(2) Subject to the last paragraph of this Section 2.08(6) and 2.08(9)2.08, commencing with the fiscal year Excess Cash Flow Period ending December on or around January 31, 20192018, not later than five Business Days 110 days after the Financial Officer certificate pursuant to Section 5.04(3) end of each Excess Cash Flow Period, the Borrower will calculate Excess Cash Flow for the corresponding such Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower and will apply the following amount to the prepayment of Term Loans:
(a) the Required Percentage of such Excess Cash Flow (if any)Flow; minus
(b) the sum amount of any voluntary prepayments during such Excess Cash Flow Period or on or prior to the 110th day after the end of such Excess Cash Flow Period of:
(i) Term Loans (including Incremental Term Loans, Other Term Loans and Extended Term Loans; provided that if any Incremental Term Loans, Other Term Loans or Extended Term Loans are optionally prepaid on a greater than pro rata basis with the Initial Term Loans, such excess optional prepayment shall not reduce the amount of the Required Percentage of Ex- cess Cash Flow for such period that is required to be applied to prepay Initial Term Loans), including any assignment of Term Loans to any Purchasing Borrower Party pursuant to (and in accordance with the terms of) Section 10.04(14); provided further that only the amount paid by the relevant Purchasing Borrower Party with respect to any such assignment (if less than the par amount of Term Loans so assigned) shall be taken into account for purposes of calculating the amount of voluntary prepayments during the relevant Excess Cash Flow Period pursuant to this Section 2.08(2);
(ii) First Lien Term Loans and other Permitted Debt secured on a first lien basis;
(iii) ABL Loans (to the extent accompanied by a corresponding reduction in the commitments);
(iv) Other Second Lien Indebtedness (and, in the case of any revolving indebtedness, to the extent accompanied by a corresponding reduction in the commitments); or
(v) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness (or Permitted Refinancing Indebtedness described in this clause (v)), in each case that is secured on a pari passu basis with, or senior to, the Term Loans (and, in the case of any revolving indebtedness, to the extent accompanied by a corresponding reduction in the commitments); in each case, to the extent not financed with the proceeds of the issuance or the incurrence of Indebtedness (other than proceeds of revolving loans), the sale or issuance of Equity Interests, Specified Sale and LeaseBack Net Proceeds or Asset Sales; provided that any such voluntary prepayment that is made on or prior to the 110th day after the end of such Excess Cash Flow Period will not reduce Excess Cash Flow for the next succeeding Excess Cash Flow Period pursuant to this clause (b). Not later than the date on which the Borrower is required to deliver financial statements with respect to the end of each Excess Cash Flow Period under Section 5.04(1), the Borrower will deliver to the Administrative Agent a certificate signed by a Financial Officer of the Borrower setting forth the amount, if any, of Excess Cash Flow for such fiscal year and the calculation thereof in reasonable detail.
(3) The Borrower will apply 100% of the net cash proceeds from the incurrence, issuance or sale by the Borrower or any Restricted Subsidiary of any Indebtedness that is not Excluded Indebtedness to the prepayment of Term Loans, on or prior to the date which is five Business Days after the receipt of such net cash proceeds.
(4) Notwithstanding anything in this Section 2.08 to the contrary, any Lender may elect, by written notice to the Administrative Agent at least two Business Days prior to the required prepayment date, to decline all or any portion of any mandatory prepayment of its Term Loans pursuant to this Section 2.08 (other than clause (3) of this Section 2.08), in which case the aggregate amount of the prepayment that would have been applied to prepay Term Loans but was so declined may be retained by the Borrower and applied for any permitted purpose hereunder. Such prepayments will be applied on a pro rata basis to the then outstanding Term Loans of all Classes being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurocurrency Loans; provided that if no Lenders exercise the right to waive a given mandatory prepayment of the Term Loans pursuant to this Section 2.08(4), then, with respect to such mandatory prepayment, the amount of such mandatory prepayment will be applied first to Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are Eurocurrency Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.13.
(5) The Borrower will deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.08, (a) a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (b) to the extent practicable, at least three 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, the principal amount of each Term Loan (or portion thereof) to be prepaid, and the Section, sub-section or clause of this Agreement pursuant to which such prepayment is being made. Prepayment of the Term Loans pursuant to this Section 2.08 will be made without premium or penalty (except as provided in Section 2.21), accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment, and applied as directed by the Borrower; provided that any prepayment of Incremental Term Loans, Other Term Loans or Extended Term Loans will be applied in the order specified in the applicable Permitted Amendment. No payments under Section 2.13 will be required in connection with a prepayment of Term Loans pursuant to this Section 2.08. In the event of any prepayment of Term Loans pursuant to this Section 2.08 at a time when Term Loans of more than one Class remain outstanding, the aggregate amount of such prepayment will be allocated between each Class of Term Loans pro rata based on the aggregate principal amount of outstanding Term Loans of each such Class (except as otherwise provided in the applicable Permitted Amendment, in each case with respect to the applicable Class of Term Loans).
(6) If the Borrower or any of its Restricted Subsidiaries enters into a Specified Sale and Lease-Back Transaction after the Closing Date, which results in the receipt by the Borrower or such Restricted Subsidiary of Specified Sale and Lease-Back Net Proceeds, the Borrower shall prepay on or prior to the date which is ten Business Days after the date of receipt of such Specified Sale and Lease-Back Net Proceeds an aggregate principal amount of Term Loans equal to 100.0% of such Specified Sale and Lease-Back Net Proceeds (other than Net Cash Proceeds attributable to any ABL Priority Collateral Asset Sale).
(7) Notwithstanding any provisions of this Section 2.08 to the contrary,
(a) to the extent that any or all of the Net Cash Proceeds or Excess Cash Flow giving rise to a prepayment event pursuant to this Section 2.08 is prohibited or delayed by (i) applicable local law (including laws related to financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance and similar legal principles, and in respect of restrictions on upstreaming of cash intra-group and the fiduciary and statutory duties of the Board of Directors of the applicable Restricted Subsidiaries) or (ii) material organizational document restrictions as a result of minority ownership, in each case from being repatriated to the United States, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.08, but may be retained by the Borrower or the applicable Subsidiary for so long, but only so long, as the applicable local law or restriction will not permit repatriation to the United States. Once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law or restriction, such repatriation will be effected promptly and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.08 to the extent provided herein; provided that the Borrower hereby agrees, and will cause any applicable Subsidiary, to promptly take all commercially reasonable actions required by applicable local law to permit any such repatriation; or
(b) to the extent that a Responsible Officer of the Borrower has reasonably determined in good faith that repatriation of any of or all the Net Cash Proceeds or Excess Cash Flow giving rise to a prepayment event pursuant to this Section 2.08 would have an adverse tax cost consequence, the Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.08, but may be retained by the Borrower or the applicable Subsidiary without being repatriated; provided that, in the case of this subclause (b), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to this Section 2.08 (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds to be applied to a prepayment):
(i) the Borrower applies an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been repatriated, less the amount of additional taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated; or
(ii) such Net Cash Proceeds or Excess Cash Flow are applied towards the permanent extinguishment (including, in the case of a revolving facility, a permanent reduction of commitments only) of Indebtedness of any Subsidiary. For purposes of this Section 2.08(7), references to “law” mean, with respect to any Person, (1) the common law and any federal, state, local, foreign, multinational or international statutes, laws, treaties, judicial decisions, standards, rules and regulations, guidances, guidelines, ordinances, rules, judgments, writs, orders, decrees, codes, plans, injunctions, permits, concessions, grants, franchises, governmental agreements and governmental restrictions (including administrative or judicial precedents or authorities), in each case whether now or hereafter in effect, and (2) the interpretation or administration thereof by, and other determinations, directives, requirements or requests of, any Governmental Authority, in each case whether or not having the force of law and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject. Notwithstanding anything to the contrary, no prepayment of Term Loans shall be required or permitted pursuant to this Section 2.08 (i) if such prepayment is prohibited by the Intercreditor Agreement, any First Lien Intercreditor Agreement and/or any Pari Passu Intercreditor Agreement or (ii) except to the extent of, and not to exceed, the amount of Net Cash Proceeds or Excess Cash Flow, as the case may be, required to be applied toward such prepayment after any required payment of the ABL Loans, the First Lien Term Loans or any Credit Agreement Refinancing Indebtedness (or in each case any Permitted Refinancing Indebtedness in respect thereof), it being understood that (x) amounts actually applied toward prepayment of the ABL Loans, the First Lien Term Loans or such Credit Agreement Refinancing Indebtedness (or in each case any Permitted Refinancing Indebtedness in respect thereof), shall reduce the amount required to be applied toward prepayments hereunder on a dollar for dollar basis and (y) amounts declined by (A) the First Lien Term Lenders pursuant to Section 2.04(4) of the First Lien Credit Agreement, (B) the holders of any Credit Agreement Refinancing Indebtedness pursuant to equivalent provisions of the credit documentation governing such Credit Agreement Refinancing Indebtedness or (C) the holders of any Permitted Refinancing Indebtedness under clause (y)(A) or (y)(B) above pursuant to equivalent provisions of the credit documentation governing such Permitted Refinancing Indebtedness, shall in each case be required to be applied as a mandatory prepayment hereunder in an amount equal to the amounts so declined.
Appears in 1 contract
Samples: Second Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Mandatory Prepayment of Term Loans. (1a) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), If the Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries receives Net Cash Proceeds from a Non-Ordinary Course Disposition and the pro forma Leverage Ratio, after giving effect to such Non-Ordinary Course Disposition (and all other appropriate pro forma events), but excluding the proceeds of such Non-Ordinary Course Disposition for the purposes of netting cash on hand in an Asset Sale made pursuant the foregoing calculation of the Leverage Ratio, is equal to or greater than 3.75 to 1.00, the General Asset Sale Basket Borrower shall prepay the Term Loans, within fifteen (other than any ABL Priority Collateral Asset Sale15) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following the receipt thereof, in an amount equal to 100% of such Net Cash Proceeds; provided that:
, if the pro forma Leverage Ratio, after giving effect to such Non-Ordinary Course Disposition (a) if at and all other appropriate pro forma events), but excluding the time that any proceeds of such prepayment would be requiredNon-Ordinary Course Disposition for the purposes of netting cash on hand in the foregoing calculation of the Leverage Ratio, is less than or equal to 4.50 to 1.00, the Borrower is required toshall be permitted to reinvest such Net Cash Proceeds to repair, replace or restore the assets disposed of pursuant to offer tosuch Non-Ordinary Course Disposition or reinvest such Net Cash Proceeds in productive assets or properties or otherwise in the business of the Borrower or its Subsidiaries (collectively, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans (any such Pari Passu Lien Debt and ABL Loans, the “Other Applicable IndebtednessReinvestment”) with within one year after receipt of such Net Cash Proceeds, then in which case, the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness shall give the Administrative Agent written notice (in the case of any revolving facilities to “Reinvestment Notice”) thereof within fifteen (15) Business Days following the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that the portion receipt of such Net Cash Proceeds. If the Borrower elects to use Net Cash Proceeds allocated for Reinvestment pursuant to the Other Applicable Indebtedness will immediately preceding sentence, within one year following the date of the Reinvestment Notice (the “Reinvestment Period”), the Borrower shall provide evidence reasonably satisfactory to the Administrative Agent that such Reinvestment has been completed on or before the end of the Reinvestment Period and, to the extent such Reinvestment has not exceed been completed, the Borrower shall prepay the Term Loans in an amount equal to the amount of such Net Cash Proceeds required to be allocated to not used for such Reinvestment. For the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amountavoidance of doubt, if anythe pro forma Leverage Ratio, after giving effect to such Non-Ordinary Course Disposition (and all other appropriate pro forma events), but excluding the proceeds of such Non-Ordinary Course Disposition for the purposes of netting cash on hand in the foregoing calculation of the Leverage Ratio, is less than 3.75 to 1.00, no prepayments under this Section 2.11 shall be required.
(b) If the Borrower or any Subsidiary issues or incurs any Indebtedness (other than Indebtedness permitted under Section 6.01), the Borrower shall prepay the Term Loans on date of such issuance or incurrence in an amount equal to 100% of the Net Cash Proceeds will be allocated to the prepayment thereof.
(c) Prepayments of the Term Loans (in accordance with the terms hereof) made pursuant to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid, the declined amount will promptly (and in any event within ten Business Days after the date of such rejection) this Section 2.11 shall be applied to prepay reduce pro rata as among the Term Loans in accordance with the terms hereof (to remaining scheduled principal installments of the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).
(2) Subject to Section 2.08(6) and 2.08(9), commencing with the fiscal year ending December 31, 2019, not later than five Business Days after the Financial Officer certificate Term Loans pursuant to Section 5.04(32.09(a)(ii) for the corresponding Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower will apply the following amount to the prepayment in reverse order of Term Loans:
(a) the Required Percentage of such Excess Cash Flow (if any); minus
(b) the sum of:maturity.
Appears in 1 contract
Mandatory Prepayment of Term Loans. (1a) Subject to Sections 2.08(6), 2.08(8[Intentionally Omitted].
(b) and 2.08(9)Upon the consummation of an Asset Sale, the Borrower will shall apply 100% of all the Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an relating to such Asset Sale made pursuant within 545 days (or such lesser number of days that may be applicable to the General Net Cash Proceeds of such Asset Sale Basket under the Existing Credit Agreement (other than any ABL Priority Collateral Asset Saleif term loans that would share in such payment are outstanding thereunder) or any Sale Leaseback Transaction other agreement governing Specified Secured Indebtedness) of receipt thereof either (i) to prepay Term Loans within ten Business Days following receipt of such Net Cash Proceeds; in accordance with Section 2.10(g) (provided that:
(a) , if at the time that of such prepayment, any such prepayment would be required, the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans (any such Pari Passu Lien Debt and ABL Loans, “Other Applicable Indebtedness”) with such Net Cash Proceeds, then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (in the case of any revolving facilities to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness will not exceed the amount of such Net Cash Proceeds is also required to be allocated used to prepay, or to make an offer to prepay, Indebtedness under the Other Applicable Indebtedness pursuant to Existing Credit Agreement or under Specified Secured Indebtedness, then the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds will Borrower shall only be allocated to the prepayment of the Term Loans (in accordance with the terms hereof) to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid, the declined amount 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 under this Section 2.10(b) with the terms hereof (to the extent such Net Cash Proceeds would otherwise have been required equally and ratably with such other Indebtedness); or (ii) to reinvest in Productive Assets (provided that this requirement shall be so applied deemed satisfied if the Borrower or such Other Applicable Indebtedness was not then outstandingRestricted Subsidiary by the end of such 545-day period has entered into a binding agreement under which it is contractually committed to reinvest in Productive Assets and such investment is consummated within 120 days from the date on which such binding agreement is entered into), or (iii) a combination of prepayment and investment permitted by the foregoing clauses (i) and (ii).
(2c) Subject to Section 2.08(6[Intentionally Omitted]
(d) and 2.08(9)No later than the earlier of (i) ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31on September 30, 20192012, not later than five Business Days after and (ii) the Financial Officer certificate date on which the financial statements with respect to such period are delivered pursuant to Section 5.04(35.01(a), the Borrower shall prepay outstanding Term Loans in accordance with Section 2.10(g) for the corresponding in an aggregate principal amount equal to 50% of Excess Cash Flow Period for the fiscal year then ended, minus Voluntary Prepayments made during such fiscal year; provided (x) that the amount of such prepayment shall have been delivered or required be reduced to be delivered, the Borrower will apply the following amount to the prepayment of Term Loans:
(a) the Required Percentage 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 5.00 to 1.00, but greater than 4.50 to 1.00, and (y) 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 4.50 to 1.00.
(e) In the event that any Loan Party or any subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or incurrence of Indebtedness for money borrowed of any Loan Party or any subsidiary of a Loan Party (other than Permitted Indebtedness), the Borrower shall, substantially simultaneously with (and in any event not later than the third Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay outstanding Term Loans in accordance with Section 2.10(g).
(f) The Borrower shall deliver to the Agent, at the time of each prepayment required under this Section 2.10, (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) days’ prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest as required by Section 2.12. All prepayments of Borrowings under this Section 2.10 shall be subject to Section 2.15, but shall otherwise be without premium or penalty.
(g) Mandatory prepayments of outstanding Term Loans under this Agreement shall be allocated ratably between the Term Loans and the Other Term Loans, if any); minus
(b) , and shall be applied pro rata against the sum of:remaining scheduled installments of principal due in respect of the Term Loans and Other Term Loans.
Appears in 1 contract
Mandatory Prepayment of Term Loans. (1) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), the The Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made pursuant to the General Asset Sale Basket Section 6.05(2) (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback 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 an Asset Sale Proceeds Account;
(b) subject to the other provisions of this Section 2.08(1), on each Reinvestment Prepayment Date the Borrower will apply an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event to the prepayment of the Term Loans (together with accrued interest thereon); and
(c) if at the time that any such prepayment would be required, the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Indebtedness secured on a pari passu basis with the Term Loans (any such Pari Passu Lien Debt and ABL LoansIndebtedness, “Other Applicable First Lien Indebtedness”) with such Net Cash Proceeds), then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable First Lien Indebtedness (in the case of any revolving facilities to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable First Lien Indebtedness outstanding at such time); provided, with it being agreed further, that the portion of such Net Cash Proceeds allocated to the Other Applicable First Lien Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable 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 extent such Net Cash Proceeds repurchase or repayment of Other First Lien Indebtedness, and the amount of the prepayment of the Term Loans that would have otherwise have been required pursuant to this clause (1) will be so applied if such Other Applicable Indebtedness was not then outstandingreduced accordingly; and
(c) provided further, that to the extent the holders of Other Applicable First Lien Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaidprepaid 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 such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable First Lien Indebtedness was not then outstanding).
(2) Subject to Section 2.08(6) and 2.08(9), commencing Commencing with the fiscal year ending December 31July 26, 20192015, not later than five Business Days 90 days after the Financial Officer certificate pursuant to Section 5.04(3) end of each Excess Cash Flow Period, the Borrower will calculate Excess Cash Flow for the corresponding such Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower and will apply the following amount to the prepayment of Term Loans:
(a) the Required Percentage of such Excess Cash Flow (if any)Flow; minus
(b) the sum amount of any voluntary prepayments during such Excess Cash Flow Period or on or prior to the 90th day after the end of such Excess Cash Flow Period of:
(i) Term Loans (including Incremental Term Loans, Other Term Loans and Extended Term Loans);
(ii) loans under the ABL Credit Agreement, any ABL Incremental Facilty or other revolving credit facility that is secured on a pari passu basis with the Term Loans (to the extent accompanied by a corresponding reduction in the commitments);
(iii) Other First Lien Indebtedness; or
(iv) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness (or Permitted Refinancing Indebtedness described in this clause (iv)), in each case that is secured on a pari passu basis with the Term Loans; in each case, to the extent not financed with the proceeds of the issuance or the incurrence of Indebtedness (other than proceeds of revolving loans), the sale or issuance of Equity Interests or Asset Sales; provided that any such voluntary prepayment that is made on or prior to the 90th day after the end of such Excess Cash Flow Period will not reduce Excess Cash Flow for the next succeeding Excess Cash Flow Period pursuant to this clause (b). Not later than the date on which the Borrower is required to deliver financial statements with respect to the end of each Excess Cash Flow Period under Section 5.04(1), the Borrower will deliver to the Administrative Agent a certificate signed by a Financial Officer of the Borrower setting forth the amount, if any, of Excess Cash Flow for such fiscal year and the calculation thereof in reasonable detail.
(3) The Borrower will apply 100% of the net cash proceeds from the incurrence, issuance or sale by the Borrower or any Restricted Subsidiary of any Indebtedness that is not Excluded Indebtedness to the prepayment of Term Loans, on or prior to the date which is five Business Days after the receipt of such net cash proceeds.
(4) Notwithstanding anything in this Section 2.08 to the contrary, any Lender may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, facsimile transmission or e-mail) at least two Business Days prior to the required prepayment date, to decline all or any portion of any mandatory prepayment of its Term Loans pursuant to this Section 2.08 (other than clause (3) of this Section 2.08), in which case the aggregate amount of the prepayment that would have been applied to prepay Term Loans but was so declined will be retained by the Borrower and applied for any permitted purpose hereunder. Such prepayments will be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurocurrency Loans; provided that if no Lenders exercise the right to waive a given mandatory prepayment of the Term Loans pursuant to this Section 2.08(4), then, with respect to such mandatory prepayment, the amount of such mandatory prepayment will be applied first to Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are Eurocurrency Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.13.
(5) The Borrower will deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.08, (a) a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (b) to the extent practicable, at least three 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 portion thereof) to be prepaid. Prepayment of the Term Loans pursuant to this Section 2.08 will be made without premium or penalty, accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment, and applied as directed by the Borrower or, absent such direction, to reduce in direct order of maturity the next eight quarterly scheduled amortization payments of Term Loans under Section 2.06(1) and, thereafter, to reduce on a pro rata basis (based on the amount of such amortization payments) the remaining scheduled amortization payments of Term Loans under Section 2.06(1) and will be allocated ratably to the Term Loans included in the prepaid Borrowing; provided that any prepayment of Incremental Term Loans, Other Term Loans or Extended Term Loans will be applied in the order specified in the applicable Permitted Amendment. No payments under Section 2.13 will be required in connection with a prepayment of Term Loans pursuant to this Section 2.08. In the event of any prepayment of Term Loans pursuant to this Section 2.08 at a time when Term Loans of more than one Class remain outstanding, the aggregate amount of such prepayment will be allocated between each Class of Term Loans pro rata based on the aggregate principal amount of outstanding Term Loans of each such Class (except as otherwise provided in the applicable Permitted Amendment, in each case with respect to the applicable Class of Term Loans).
(6) Notwithstanding any provisions of this Section 2.08 to the contrary,
(a) to the extent that any or all of the Net Cash Proceeds or Excess Cash Flow giving rise to a prepayment event pursuant to this Section 2.08 is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.08, but may be retained by the Borrower or the applicable Subsidiary for so long, but only so long, as the applicable local law will not permit repatriation to the United States. Once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law, such repatriation will be effected promptly and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.08 to the extent provided herein; provided that the Borrower hereby agrees, and will cause any applicable Subsidiary, to promptly take all commercially reasonable actions required by applicable local law to permit any such repatriation; or
(b) to the extent that a Responsible Officer of the Borrower has reasonably determined in good faith that repatriation of any of or all the Net Cash Proceeds or Excess Cash Flow giving rise to a prepayment event pursuant to this Section 2.08 would have an adverse tax cost consequence, the Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.08, but may be retained by the Borrower or the applicable Subsidiary without being repatriated; provided that, in the case of this subclause (b), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to this Section 2.08 (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds to be applied to a prepayment):
(i) the Borrower applies an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been repatriated, less the amount of additional taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated; or
(ii) such Net Cash Proceeds or Excess Cash Flow are applied towards the permanent extinguishment (including, in the case of a revolving facility, a permanent reduction of commitments only) of Indebtedness of any Subsidiary. For purposes of this Section 2.08(6), references to “law” mean, with respect to any Person, (1) the common law and any federal, state, local, foreign, multinational or international statutes, laws, treaties, judicial decisions, standards, rules and regulations, guidances, guidelines, ordinances, rules, judgments, writs, orders, decrees, codes, plans, injunctions, permits, concessions, grants, franchises, governmental agreements and governmental restrictions (including administrative or judicial precedents or authorities), in each case whether now or hereafter in effect, and (2) the interpretation or administration thereof by, and other determinations, directives, requirements or requests of, any Governmental Authority, in each case whether or not having the force of law and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Neiman Marcus Group LTD Inc.)
Mandatory Prepayment of Term Loans. (1) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), the Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made pursuant The Term Loans shall be subject to the General Asset Sale Basket (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following receipt of such Net Cash Proceeds; provided thatmandatory prepayment provisions:
(a) On and after the Closing Date, if at any Indebtedness shall be issued or incurred by the time that Company or any such prepayment would be requiredSubsidiary (excluding any Indebtedness incurred in accordance with Section 6.18), an amount equal to 100% of the Borrower is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans (any such Pari Passu Lien Debt and ABL Loans, “Other Applicable Indebtedness”) with such Net Cash Proceeds, then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (in the case of any revolving facilities to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will thereof shall be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined applied on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that the portion date of such Net Cash Proceeds allocated to the Other Applicable Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds will be allocated to issuance or incurrence toward the prepayment of the Term Loans as set forth in Section 2.6.9.
(in accordance with b) On and after the terms hereofClosing Date, if the Company or any Subsidiary shall receive Net Cash Proceeds from any Asset Sale Prepayment Event or Recovery Event (or series of related Asset Sale Prepayment Events or Recovery Events) then an amount equal to the extent 100% of such Net Cash Proceeds would otherwise have been required to shall be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) on or prior to the extent fifth Business Day after such receipt (or in the holders case of Other Applicable Indebtedness decline an Asset Sale Prepayment Event or Recovery Event (or series of related Asset Sale Prepayment Events or Recovery Events) in an amount less than or equal to have such Indebtedness repurchased$50,000,000, redeemed, repaid on or prepaid, prior to the declined amount will promptly (and in any event within ten date five Business Days after the date the financial statements for the fiscal quarter in which the aggregate amount of Net Cash Proceeds for all such rejectionAsset Sale Prepayment Events or Recovery Events for the four consecutive fiscal quarter period ending with such fiscal quarter exceed $50,000,000 are required to be delivered pursuant to Section 6.1(i) be applied to prepay or (ii)), toward the prepayment of the Term Loans as set forth in accordance with the terms hereof Section 2.6.9. Prepayments from, and, without duplication, of amounts equal to, Net Cash Proceeds of any Asset Sale Prepayment Event or Recovery Event by a Foreign Subsidiary (to the extent 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 or (y) repatriation of Foreign Subsidiaries’ funds to fund such prepayment could reasonably be expected to result in material adverse tax consequences to the Company and its Subsidiaries. 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 Subsidiaries) and (b) with respect to non-Wholly Owned 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 a Default or an Event of Default and such amounts shall be available for working capital purposes of the Company and its 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. 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 Subsidiaries or any of its Affiliates or equity partners and arising as a result of compliance with this paragraph.
(c) Notwithstanding the provisions in Section 2.6.5(a), on and after the Closing Date, if any Indebtedness shall be issued or incurred (including under any revolving commitments) in accordance with Section 6.18(iv), an amount equal to 100% of the aggregate Net Cash Proceeds would otherwise have been required to thereof shall be so applied within three (3) Business Days of the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in Section 2.6.9; provided that if such Other Applicable Indebtedness was is incurred in the form of revolving Indebtedness, the amount of such mandatory prepayment required by this Section 2.6.5(c) shall not then outstanding).
exceed the lesser of (1) the amount of the commitments with respect to such revolving Indebtedness and (2) Subject to Section 2.08(6) and 2.08(9), commencing with the fiscal year ending December 31, 2019, not later than five Business Days after the Financial Officer certificate pursuant to Section 5.04(3) for the corresponding Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower will apply the following amount to the prepayment of Term Loans:
(a) the Required Percentage of such Excess Cash Flow (if any); minus
(b) the sum of:$200,000,000.
Appears in 1 contract
Mandatory Prepayment of Term Loans. (1) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), the Borrower The Borrowers will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries after the Closing Date in an Asset Sale made pursuant to the General Asset Sale Basket Section 6.05(2) (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to prepay Term Loans within ten Business Days following receipt of such Net Cash Proceeds, unless Holdings 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 an Asset Sale Proceeds Account;
(b) subject to the other provisions of this Section 2.08(1), on each Reinvestment Prepayment Date the Borrowers will apply an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event to the prepayment of the Term Loans (together with accrued interest thereon); and
(c) if at the time that any such prepayment would be required, the Borrower Borrowers is required to, or to offer to, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Indebtedness secured on a pari passu basis with the Term Loans (any such Pari Passu Lien Debt and ABL LoansIndebtedness, “Other Applicable First Lien Indebtedness”) with such Net Cash Proceeds), then the Borrower Borrowers may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay all Classes of Term Loans and Other Applicable First Lien Indebtedness (in the case of any revolving facilities to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable First Lien Indebtedness outstanding at such time); provided, with it being agreed further, that the portion of such Net Cash Proceeds allocated to the Other Applicable First Lien Indebtedness will not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable 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 extent such Net Cash Proceeds repurchase or repayment of Other First Lien Indebtedness on a pro rata basis, and the amount of the prepayment of the Term Loans that would have otherwise have been required pursuant to this clause (1) will be so applied if such Other Applicable Indebtedness was not then outstandingreduced accordingly; and
(c) provided, further, that to the extent the holders of Other Applicable First Lien Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaidprepaid 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 such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable First Lien Indebtedness was not then outstanding).
(2) Subject to Section 2.08(6) and 2.08(9), commencing Commencing with the fiscal year ending December 31, 20192018, not later than five Business Days 90 days after the Financial Officer certificate pursuant to Section 5.04(3) end of each Excess Cash Flow Period, Holdings will calculate Excess Cash Flow for the corresponding such Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower and will apply the following amount to the prepayment of Term Loans:
(a) the Required Percentage of such Excess Cash Flow (if any)Flow; minus
(b) the sum amount of any voluntary prepayments during such Excess Cash Flow Period or on or prior to the 90th day after the end of such Excess Cash Flow Period, including prepayments of Term Loans under Section 10.04(14) (provided that any such reduction under this clause (b) shall be limited to the actual amount of such cash payment) of:
(i) Term Loans (including Incremental Term Loans, Other Term Loans and Extended Term Loans);
(ii) loans under the ABL Credit Agreement (to the extent accompanied by a corresponding reduction in the commitments);
(iii) Other First Lien Indebtedness (and, in the case of any revolving indebtedness, to the extent accompanied by a corresponding reduction in the commitments); and
(iv) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness (or Permitted Refinancing Indebtedness described in this clause (iv)), in each case that is secured on a pari passu basis with the Term Loans (and, in the case of any revolving indebtedness, to the extent accompanied by a corresponding reduction in the commitments); in each case, to the extent not financed with the proceeds of the issuance or the incurrence of Indebtedness (other than proceeds of revolving loans); provided that any such voluntary prepayment that is made on or prior to the 90th day after the end of such Excess Cash Flow Period (or 120th day in the case of the first Excess Cash Flow Period) will not reduce Excess Cash Flow for the next succeeding Excess Cash Flow Period pursuant to this clause (b). Not later than the date on which Holdings is required to deliver financial statements with respect to the end of each Excess Cash Flow Period under Section 5.04(1), Holdings will deliver to the Administrative Agent a certificate signed by a Financial Officer of Holdings setting forth the amount, if any, of Excess Cash Flow for such fiscal year and the calculation thereof in reasonable detail.
(3) The Borrowers will apply 100% of the net cash proceeds received after the Closing Date from the incurrence, issuance or sale by Holdings or any Restricted Subsidiary of any Indebtedness that is not Excluded Indebtedness to the prepayment of Term Loans, on or prior to the date which is five Business Days after the receipt of such net cash proceeds.
(4) [Reserved].
(5) [Reserved].
(6) [Reserved]
(7) Notwithstanding anything in this Section 2.08 to the contrary, any Lender may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, facsimile transmission or e-mail) at least two Business Days prior to the required prepayment date, to decline all or any portion of any mandatory prepayment of its Term Loans pursuant to this Section 2.08 (other than clause (3) of this Section 2.08), in which case the aggregate amount of the prepayment that would have been applied to prepay Term Loans but was so declined will be retained by the Borrowers and applied for any permitted purpose hereunder. Such prepayments will be applied on a pro rata basis to the then outstanding Term Loans of all Classes being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurocurrency Loans; provided that the amount of such mandatory prepayment will be applied first to Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are Eurocurrency Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.13.
(8) The Borrowers will deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.08, (a) a certificate signed by a Financial Officer of such Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (b) to the extent practicable, at least three 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 portion thereof) to be prepaid. Prepayment of the Term Loans pursuant to this Section 2.08 will be made without premium or penalty, accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment, and applied as directed by the Borrowers or, absent such direction, to reduce scheduled amortization payments of Term Loans under Section 2.06(1) in direct order of maturity; provided that any prepayment of Incremental Term Loans, Other Term Loans or Extended Term Loans will be applied in the order specified in the applicable Permitted Amendment. No payments under Section 2.13 will be required in connection with a prepayment of Term Loans pursuant to this Section 2.08. In the event of any prepayment of Term Loans pursuant to this Section 2.08 at a time when Term Loans of more than one Class remain outstanding, the aggregate amount of such prepayment will be allocated between each Class of Term Loans pro rata based on the aggregate principal amount of outstanding Term Loans of each such Class (except as otherwise provided in the applicable Permitted Amendment, in each case with respect to the applicable Class of Term Loans).
(9) With respect to any prepayment required in this Section 2.08, notwithstanding any provisions of this Section 2.08 to the contrary,
(a) to the extent that any or all of the Net Cash Proceeds or Excess Cash Flow giving rise to a prepayment event pursuant to this Section 2.08 is prohibited or delayed by (i) applicable local law (including laws related to financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance and similar legal principles, and in respect of restrictions on upstreaming of cash intra-group and the fiduciary and statutory duties of the Board of Directors of the applicable Restricted Subsidiaries) from being repatriated to the relevant Borrower(s) or (ii) material organizational document restrictions (other than with respect to Wholly-Owned Subsidiaries), the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.08, but may be retained by the Borrowers or the applicable Subsidiary for so long, but only so long, as the applicable local law or restriction will not permit repayment or repatriation to the relevant Borrower(s), as applicable. Once such repatriation or repayment of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law or restriction (and the Borrowers hereby agree to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of Holdings and its Restricted Subsidiaries to make the relevant prepayment), such repatriation or repayment will be effected promptly and such repatriated or repaid Net Cash Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.08 to the extent provided herein; provided that, in the case of a local law restriction on repatriation, each Borrower hereby agrees, and will cause any applicable Subsidiary, to promptly take all commercially reasonable actions required by applicable local law to permit any such repatriation; or
(b) to the extent that a Responsible Officer of Holdings has reasonably determined in good faith that repatriation or repayment of any of or all the Net Cash Proceeds or Excess Cash Flow giving rise to a prepayment event pursuant to this Section 2.08 would have an adverse tax cost consequence or be prohibited due to such material organizational document restrictions as a result of minority ownership or applicable law, the Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.08, but may be retained by the applicable Borrower or the applicable Subsidiary without being repatriated or repaid, as applicable; provided that, once such repatriation or repayment of any of such affected Net Cash Proceeds or Excess Cash Flow would no longer be prohibited or have such adverse tax consequences, such repatriation or repayment will be effected promptly and such repatriated or repaid Net Cash Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.08 to the extent provided herein. For purposes of this Section 2.08(9), references to “law” mean, with respect to any Person, (1) the common law and any federal, state, local, foreign, multinational or international statutes, laws, treaties, judicial decisions, standards, rules and regulations, guidances, guidelines, ordinances, rules, judgments, writs, orders, decrees, codes, plans, injunctions, permits, concessions, grants, franchises, governmental agreements and governmental restrictions (including administrative or judicial precedents or authorities), in each case whether now or hereafter in effect, and (2) the interpretation or administration thereof by, and other determinations, directives, requirements or requests of, any Governmental Authority, in each case whether or not having the force of law and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
Appears in 1 contract
Mandatory Prepayment of Term Loans. (1a) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), the The Borrower will shall apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made pursuant to the General Asset Sale Basket (other than any Net Proceeds of ABL Priority Collateral Asset SaleSales) or any Sale Leaseback Transaction to prepay Term Loans within ten five Business Days following receipt of such Net Cash ProceedsProceeds (unless the Borrower shall have delivered a Reinvestment Notice on or prior to such fifth Business Day); provided that:
that (ai) on or prior to the fifth Business Day following receipt thereof, such Net Proceeds shall be deposited in an Asset Sale Proceeds Account, (ii) notwithstanding the foregoing, in the case of Net Proceeds received from an Asset Sale or a Recovery Event, on each Reinvestment Prepayment Date an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Term Loans (together with accrued interest thereon), (iii) if at the time that any such prepayment would be required, the Borrower is shall be required to, or to offer to, repurchase, redeem, repurchase or redeem or repay or prepay any Pari Passu Credit Agreement Refinancing Indebtedness, Indebtedness permitted under Section 6.01(b) or Indebtedness that is subject to a Lien Debt permitted under Section 6.02(t)(i), in each case, that is secured on a pari passu basis with the Obligations pursuant to the terms of the documentation governing such Indebtedness with proceeds of such Asset Sale or ABL Loans Recovery Event (any such Pari Passu Lien Debt and ABL LoansCredit Agreement Refinancing Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”) with such Net Cash Proceeds)), then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (in the case of any revolving facilities to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time) and (iv) no payments under Section 2.14 shall be required in connection with any prepayment under this clause (a); provided, with it being agreed further, that the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness will shall not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds will shall be allocated to the prepayment of the Term Loans (in accordance with the terms hereof) to the extent such Net Cash Proceeds prepayment of the Term Loans and to the repurchase or repayment of Other Applicable Indebtedness, and the amount of the prepayment of the Term Loans that would have otherwise have been required pursuant to this clause (a) shall be so applied if such Other Applicable Indebtedness was not then outstandingreduced accordingly; and
(c) provided further, that to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repurchased or repaid or prepaidwith such Net Proceeds, the declined amount will of such Net Proceeds shall 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 such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).
(2b) Subject to Section 2.08(6) and 2.08(9), commencing Commencing with the fiscal year ending December 3129, 20192013, not later than five Business Days 90 days after the Financial Officer certificate pursuant to Section 5.04(3) end of each Excess Cash Flow Period, the Borrower shall calculate Excess Cash Flow for the corresponding such Excess Cash Flow Period and shall have been delivered or required apply an amount equal to be delivered, the Borrower will apply the following amount to the prepayment of Term Loans:
(ai) the Required Percentage of such Excess Cash Flow, minus (ii) to the extent not financed with the proceeds of the incurrence of Indebtedness having a maturity not less than 12 months from the date of incurrence thereof, the amount of any voluntary prepayments during such Excess Cash Flow Period or on or prior to the 90th day after the end of such Excess Cash Flow Period of (A) Term Loans, (B) revolving loans under the ABL Credit Agreement, any Incremental ABL Loans or other revolving credit facility (to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments), (C) term loans under the Second Lien Term Loan Credit Agreement, any Incremental Second Lien Term Loans or any Incremental Equivalent Second Lien Term Debt and (D) Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Facilities, Incremental Equivalent First Lien Term Debt, Indebtedness permitted under Section 6.01(b) or Indebtedness subject to a Lien permitted under Section 6.02(t)(i), and any Permitted Refinancing Indebtedness in respect of any of the foregoing, in each case, permitted hereunder. Not later than the date on which the Borrower is required to deliver financial statements with respect to the end of each Excess Cash Flow Period under Section 5.04(a), the Borrower will deliver to the Administrative Agent a certificate signed by a Financial Officer of the Borrower setting forth the amount, if any); minus, of Excess Cash Flow for such fiscal year and the calculation thereof in reasonable detail.
(c) Notwithstanding anything in this Section 2.09 to the contrary, any Lender may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, facsimile transmission or e-mail) at least one Business Day prior to the required prepayment date, to decline all or any portion of any mandatory prepayment of its Term Loans pursuant to this Section 2.09, in which case the aggregate amount of the prepayment that would have been applied to prepay Term Loans but was so declined shall, subject to the terms of the Second Lien Term Loan Credit Agreement, be retained by the Borrower.
(d) Prepayment of the Term Loans from Net Proceeds and Excess Cash Flow shall be applied as directed by the Borrower (or, absent such direction, to each Term Facility, pro rata, pursuant to Sections 2.09(a) and (b) to reduce in direct order of maturity the sum of:next eight quarterly scheduled amortization payments of Term Loans under Section 2.07(a) and, thereafter, to reduce on a pro rata basis (based on the amount of such amortization payments) the remaining scheduled amortization payments of Term Loans under Section 2.07(a); provided that any Incremental Term Loans, Other Term Loans or Extended Term Loans shall be applied in the order specified in the applicable Permitted Amendment.
Appears in 1 contract
Samples: First Lien Term Loan Credit Agreement (Smart & Final Stores, Inc.)
Mandatory Prepayment of Term Loans. (1a) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), the The Borrower will shall apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made pursuant to the General Asset Sale Basket (other than any Net Proceeds of ABL Priority Collateral Asset SaleSales) or any Sale Leaseback Transaction to prepay Term Loans within ten five Business Days following receipt of such Net Cash ProceedsProceeds (unless the Borrower shall have delivered a Reinvestment Notice on or prior to such fifth Business Day); provided that:
that (ai) on or prior to the fifth Business Day following receipt thereof, such Net Proceeds shall be deposited in an Asset Sale Proceeds Account, (ii) notwithstanding the foregoing, in the case of Net Proceeds received from an Asset Sale or a Recovery Event, on each Reinvestment Prepayment Date an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Term Loans (together with accrued interest thereon), (iii) if at the time that any such prepayment would be required, the Borrower is shall be required to, or to offer to, repurchase, redeem, repurchase or redeem or repay or prepay any Pari Passu Credit Agreement Refinancing Indebtedness, Indebtedness permitted under Section 6.01(b) or Indebtedness that is subject to a Lien Debt permitted under Section 6.02(t)(i), in each case, that is secured on a pari passu basis with the Obligations pursuant to the terms of the documentation governing such Indebtedness with proceeds of such Asset Sale or ABL Loans Recovery Event (any such Pari Passu Lien Debt and ABL LoansCredit Agreement Refinancing Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”) with such Net Cash Proceeds)), then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (in the case of any revolving facilities to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time) and (iv) no payments under Section 2.14 shall be required in connection with any prepayment under this clause (a); provided, with it being agreed further, that the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness will shall not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds will shall be allocated to the prepayment of the Term Loans (in accordance with the terms hereof) to the extent such Net Cash Proceeds prepayment of the Term Loans and to the repurchase or repayment of Other Applicable Indebtedness, and the amount of the prepayment of the Term Loans that would have otherwise have been required pursuant to this clause (a) shall be so applied if such Other Applicable Indebtedness was not then outstandingreduced accordingly; and
(c) provided further, that to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repurchased or repaid or prepaidwith such Net Proceeds, the declined amount will of such Net Proceeds shall 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 such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).
(2b) Subject to Section 2.08(6) and 2.08(9), commencing Commencing with the fiscal year ending December 3129, 20192013, not later than five Business Days 90 days after the Financial Officer certificate pursuant to Section 5.04(3) end of each Excess Cash Flow Period, the Borrower shall calculate Excess Cash Flow for the corresponding such Excess Cash Flow Period and shall have been delivered or required apply an amount equal to be delivered, the Borrower will apply the following amount to the prepayment of Term Loans:
(ai) the Required Percentage of such Excess Cash Flow, minus (ii) to the extent not financed with the proceeds of the incurrence of Indebtedness having a maturity not less than 12 months from the date of incurrence thereof, the amount of any voluntary prepayments during such Excess Cash Flow Period or on or prior to the 90th day after the end of such Excess Cash Flow Period of (A) Term Loans, (B) revolving loans under the ABL Credit Agreement, any Incremental ABL Loans or other revolving credit facility (to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments) and (C) Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Facilities, Incremental Equivalent First Lien Term Debt, Indebtedness permitted under Section 6.01(b) or Indebtedness subject to a Lien permitted under Section 6.02(t)(i), and any Permitted Refinancing Indebtedness in respect of any of the foregoing, in each case, permitted hereunder. Not later than the date on which the Borrower is required to deliver financial statements with respect to the end of each Excess Cash Flow Period under Section 5.04(a), the Borrower will deliver to the Administrative Agent a certificate signed by a Financial Officer of the Borrower setting forth the amount, if any); minus, of Excess Cash Flow for such fiscal year and the calculation thereof in reasonable detail.
(bc) Notwithstanding anything in this Section 2.09 to the sum of:contrary, any Lender may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, facsimile transmission or e-mail) at least one Business Day prior to the required prepayment date, to decline all or any portion of any mandatory prepayment of its Term Loans pursuant to this
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Mandatory Prepayment of Term Loans. (1a) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), If the Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Asset Sale made pursuant receives Net Cash Proceeds from a Non-Ordinary Course Disposition and the pro forma Leverage Ratio, after giving effect to such Non-Ordinary Course Disposition (and all other appropriate pro forma events), exceeds 3.75 to
1. 00, the General Asset Sale Basket (other than any ABL Priority Collateral Asset Sale) or any Sale Leaseback Transaction to Borrower shall prepay the Term Loans on a pro rata basis with the Indebtedness described in and permitted under Section 6.01(l), within ten fifteen (15) Business Days following the receipt thereof, in an amount equal to 100% of such Net Cash Proceeds; provided that:
(a) if at , to the time that any extent such prepayment would be requiredNet Cash Proceeds exceed $200,000,000, the Borrower is required toshall be permitted to reinvest such Net Cash Proceeds to repair, replace or restore the assets disposed of pursuant to offer tosuch Non-Ordinary Course Disposition or reinvest such Net Cash Proceeds in productive assets or properties or otherwise in the business of the Borrower or its Subsidiaries (collectively, repurchase, redeem, repay or prepay any Pari Passu Lien Debt or ABL Loans (any such Pari Passu Lien Debt and ABL Loans, the “Other Applicable IndebtednessReinvestment”) with within one year after receipt of such Net Cash Proceeds, then in which case, the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness shall give the Administrative Agent written notice (in the case of any revolving facilities to “Reinvestment Notice”) thereof within fifteen (15) Business Days following the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from the perspective of the applicable Lenders) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(1) will be reduced accordingly;
(b) for purposes of the preceding clause (a), pro rata basis will be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that the portion receipt of such Net Cash Proceeds. If the Borrower elects to use Net Cash Proceeds allocated for Reinvestment pursuant to the Other Applicable Indebtedness will immediately preceding sentence, within one year following the date of the Reinvestment Notice (the “Reinvestment Period”), the Borrower shall provide evidence reasonably satisfactory to the Administrative Agent that such Reinvestment has been completed on or before the end of the Reinvestment Period and, to the extent such Reinvestment has not exceed been completed, the Borrower shall prepay the Term Loans in an amount equal to the amount of such Net Cash Proceeds required to be allocated to not used for such Reinvestment.
(b) If the Other Applicable Borrower or any Subsidiary issues or incurs any Indebtedness pursuant to (other than Indebtedness permitted under Section 6.01), the terms thereof, and Borrower shall prepay the remaining amount, if any, Term Loans on date of such issuance or incurrence in an amount equal to 100% of the Net Cash Proceeds will be allocated to the prepayment thereof.
(c) Prepayments of the Term Loans (in accordance with the terms hereof) made pursuant to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding; and
(c) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid or prepaid, the declined amount will promptly (and in any event within ten Business Days after the date of such rejection) this Section 2.11 shall be applied to prepay reduce pro rata as among the Term Loans in accordance with the terms hereof (to remaining scheduled principal installments of the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).
(2) Subject to Section 2.08(6) and 2.08(9), commencing with the fiscal year ending December 31, 2019, not later than five Business Days after the Financial Officer certificate Term Loans pursuant to Section 5.04(32.09(a)(ii) for the corresponding Excess Cash Flow Period shall have been delivered or required to be delivered, the Borrower will apply the following amount to the prepayment in reverse order of Term Loans:
(a) the Required Percentage of such Excess Cash Flow (if any); minus
(b) the sum of:maturity.
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Samples: Credit Agreement (Service Corporation International)
Mandatory Prepayment of Term Loans. (1a) Subject to Sections 2.08(6), 2.08(8) and 2.08(9), If the Borrower will apply 100% of all Net Cash Proceeds received by it or any of its Restricted Subsidiaries in an Loan Party, (i) consummates any Asset Sale made of property or assets constituting Collateral pursuant to the General Asset Sale Basket (other than dispositions of obsolete or worn out property, dispositions in the ordinary course of business and dispositions of assets no longer determined by the Borrower to be used or useful in its business), or (ii) any Recovery Event occurs with respect to property or assets constituting Collateral, which in either case, results in the realization or receipt by the Borrower or such Loan Party of Net Cash Proceeds (excluding in respect of Net Cash Proceeds of an ABL Priority Collateral Asset Sale), then:
(i) or any Sale Leaseback Transaction to prepay Term Loans the Borrower shall, within ten five Business Days following actual receipt of such Net Cash Proceeds, prepay Term Loans an aggregate principal amount of Closing Date Term Loans and any other Term Loans (unless such prepayment is not required pursuant to the terms of such other Term Loans) equal to the Asset Sale Prepayment Percentage of such Net Cash Proceeds realized or received; provided that:
(a) that if at the time that any such prepayment would be requiredrequired pursuant to this clause (a), the Borrower is required to, to repay or repurchase or to offer to, repurchase, redeem, to repurchase or repay or prepay any Pari Passu Lien Debt pursuant to the terms of the documentation governing such Indebtedness with the proceeds of such disposition or ABL Loans Recovery Event (any such Pari Passu Lien Debt and ABL Loansrequired to be repaid or repurchased or to be offered to be so repaid or repurchased, “Other Applicable Indebtedness”) with such Net Cash Proceeds), then the Borrower may apply such Net Cash Proceeds to redeem, repurchase, repay or prepay Term Loans and Other Applicable Indebtedness (in the case of any revolving facilities to the extent accompanied by a permanent reduction of the corresponding commitment) on a pro rata basis (or more favorable basis from to the perspective prepayment of the applicable Lenders) Term Loans and to the repayment or repurchase of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.08(12.09(a) will shall be reduced accordingly;
accordingly (b) for purposes of the preceding clause (a), this proviso pro rata basis will shall be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness outstanding at such time, with it being agreed that the portion of such Net Cash Proceeds net proceeds allocated to the Other Applicable Indebtedness will shall not exceed the amount of such Net Cash Proceeds net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds will net proceeds shall be allocated to the prepayment of the Term Loans (in accordance with the terms hereof) to the extent such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding); and
(c) provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased, redeemed, repaid indebtedness repurchased or prepaid, the declined amount will shall 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 (hereof; provided, further, that no prepayment shall be required pursuant to the extent this Section 2.09(a) with respect to such portion of such Net Cash Proceeds would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstandingthat the Borrower shall reinvest in accordance with this Section 2.09(a).
(ii) With respect to any Net Cash Proceeds realized or received with respect to any Asset Sale or any Recovery Event that, in either case, is subject to the application of the foregoing provisions of this Section 2.07(b), at the option of the Borrower or any of the Restricted Subsidiaries, the Borrower or any of its Restricted Subsidiaries may (in lieu of making a prepayment pursuant to the foregoing provisions) elect to
(A) reinvest an amount equal to all or any portion of such Net Cash Proceeds in assets used or useful for the business of the Borrower and the Restricted Subsidiaries (1) within twenty-four months following receipt of such Net Cash Proceeds or (2) Subject if the Borrower or any of the Restricted Subsidiaries enters into a legally binding commitment to reinvest such Net Cash Proceeds within twenty-four months following receipt of such Net Cash Proceeds, no later than twelve months after the end of such twenty-four month period; provided that if any portion of such amount is not so reinvested by such dates, subject to Section 2.08(6) and 2.08(92.09(d), commencing an amount equal to the Asset Sale Prepayment Percentage of any such Net Cash Proceeds shall be applied within five Business Days after such dates to the prepayment of the Term Loans and Other Applicable Indebtedness as set forth above or
(B) apply such Net Cash Proceeds to permanently repay indebtedness of non-Loan Parties.
(b) Within five Business Day following receipt of Net Cash Proceeds from the incurrence, issuance or sale by the Borrower or any Restricted Subsidiary of any Indebtedness (other than Excluded Indebtedness), the Borrower shall apply the Net Cash Proceeds of such Indebtedness to prepay Closing Date Term Loans and any other Term Loans (unless such prepayment is not required pursuant to the terms of such other Term Loans).
(c) Commencing with the fiscal year ending December 31September 30, 20192023, not later than five Business Days after the Financial Officer certificate pursuant to Section 5.04(3) for date on which the corresponding Excess Cash Flow Period shall have been delivered or Borrower is required to be delivered, the Borrower will apply the following amount deliver financial statements with respect to the prepayment of Term Loans:
(a) the Required Percentage end of such Excess Cash Flow Period under Section 5.04(a), the Borrower shall calculate Excess Cash Flow for the relevant Excess Cash Flow Period (if any); minus
(bthe “Excess Cash Flow Calculation Date”) and shall prepay the sum ofTerm Loans in an amount equal to:
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