Mandatory Prepayment Borrower shall prepay the Loan until Paid in Full at the following times and in the following amounts:
(i) concurrently with the receipt by any Loan Party of any Net Cash Proceeds from any Disposition, in an amount equal to such Net Cash Proceeds; and
(ii) concurrently with the receipt by any Loan Party of any Net Cash Proceeds from any issuance of its equity securities (other than equity securities that are issued to (x) Parent, (y) management of Parent, or (z) to Persons that as of the date hereof hold equity in Parent; but, without limitation of the foregoing, and for avoidance of any doubt, inclusive of any equity securities issued pursuant to the contemplated PIPE or any similar offering whether to Persons that as of the date hereof hold equity in Parent or otherwise) in an amount equal to such Net Cash Proceeds; and
(iii) within forty-five (45) days after the end of each Fiscal Quarter (commencing with the Fiscal Quarter ending September 30, 2008), in an amount equal to fifty percent (50%) of the Excess Cash Flow earned during such prior Fiscal Quarter, until the Loan is reduced in principal amount to $30,000,000, and, thereafter, in an amount equal to twenty-five percent (25%) of the Excess Cash Flow earned during such prior Fiscal Quarter. Notwithstanding clause (ii) above, in the event that Parent issues equity securities pursuant to the contemplated PIPE or enters into any similar transaction involving the sale or exchange of equity securities, debt or convertible debt of Parent subsequent to the Closing Date, after Borrowers have caused the Loan to be reduced in principal amount to not less than $30,000,000 from the Net Cash Proceeds therefrom, Borrowers shall, to the extent provided in and permitted by the Black Forest Subordination Agreement, pay the then outstanding principal amount of the Black Forest Note from any remaining Net Cash Proceeds, until it is paid in full, after which any remaining Net Cash Proceeds may be used by Borrower to prepay further the Loan, to repay Senior Debt or for any other corporate purpose not in contravention of any terms of this Agreement.
Mandatory Prepayments (i) If, at any time or for any reason, the amount of Obligations owed by Borrower to Lender pursuant to Sections 2.1 is greater than the Dollar limitations set forth in Sections 2.1, (an “Overadvance”), Borrower immediately shall pay to Agent, in cash, the amount of such excess, which amount shall be used by Agent to reduce the Obligations in accordance with the priorities set forth in Section 2.4(b). In addition, Borrower hereby promises to pay the Obligations (including principal, interest, fees, costs, and expenses) in Dollars in full to Agent as and when due and payable under the terms of this Agreement and the other Loan Documents.
(ii) Immediately upon the receipt by Borrower or any of its Subsidiaries of the proceeds of any Disposition by Borrower or any of its Subsidiaries of property or assets (excluding sales or dispositions which qualify as Permitted Dispositions under clauses (a) through (f), (h), or (i) of the definition of Permitted Dispositions), Borrower shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(f)(i) in an amount equal to 100% of the Net Cash Proceeds (including insurance proceeds and condemnation awards and payments in lieu thereof) received by such Person in connection with such sales or dispositions; provided that, so long as (A) no Default or Event of Default shall have occurred and is continuing, (B) the Net Cash Proceeds of such Disposition are held in a cash collateral account in which Agent has a perfected first-priority security interest, and (C) Borrower or its Subsidiaries, as applicable, complete such replacement, purchase, or construction within 180 days after the initial receipt of such monies, Borrower and its Subsidiaries shall have the option to apply such monies to the costs of replacement of the property or assets that are the subject of such sale or disposition unless and to the extent that such applicable period shall have expired without such replacement, purchase or construction being made or completed, in which case, such monies shall be paid to Agent and applied in accordance with Section 2.4(f). Nothing contained in this Section 2.4(e)(ii) shall permit Borrower or any of its Subsidiaries to sell or otherwise dispose of any property or assets other than in accordance with Section 7.4.
(iii) Promptly upon the issuance or incurrence by Borrower or any of its Subsidiaries of any Indebtedness (except for Indebtedness permitted under Section 7.1) Borrower shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(f) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such issuance or incurrence. The provisions of this Section 2.4(e)(iii) shall not be deemed to be implied consent to any such issuance or incurrence otherwise prohibited by the terms and conditions of this Agreement.
(iv) Promptly upon the issuance by Borrower or any of its Subsidiaries of any Stock (except for (A) the issuance of Stock by Borrower to any Permitted Holder, (B) the issuance of Stock of Borrower to directors, officers and employees of Borrower and its Subsidiaries pursuant to employee stock option plans (or other employee incentive plans or other compensation arrangements) approved by the Board of Directors) Borrower shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(f) in an amount equal to 50% of the Net Cash Proceeds received by such Person in connection with such issuance; provided, however, that if the Leverage Ratio of Borrower and its Subsidiaries as of the end of the fiscal quarter most recently ended prior to the date of the issuance of such Stock as to which financial statements were required to be delivered pursuant to this Agreement was equal to or less than 2.0:1.0, then no prepayment in respect of such issuance of Stock shall be required. The provisions of this Section 2.4(e)(iv) shall not be deemed to be implied consent to any such issuance otherwise prohibited by the terms and conditions of this Agreement. For the avoidance of doubt, this Section 2.4(e)(iv) shall not apply to Qualifying IPO.
(v) Within 10 days of delivery to Agent of audited annual financial statements pursuant to Section 6.3(b), commencing with the delivery to Agent of the financial statements for Borrower’s fiscal year ended December 31, 2015 or, if such financial statements are not delivered to Agent on the date such statements are required to be delivered pursuant to Section 6.3(b), within 10 days after the date such statements were required to be delivered to Agent pursuant to Section 6.3(b), Borrower shall (A) if such financial statements demonstrate that the Leverage Ratio of Borrower and its Subsidiaries as of the end of such fiscal year was greater than 1.50:1.00, prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(f) in an amount equal to 50% of the Excess Cash Flow of Borrower and its Subsidiaries for such fiscal year, and (B) if such financial statements demonstrate that the Leverage Ratio of Borrower and its Subsidiaries as of the end of such fiscal year was 1.50:1.0 or less, then no prepayment shall be required. The foregoing to the contrary notwithstanding, at Agent’s election, in its sole and absolute discretion, if the remaining amount of the capital expenditures projected to be made during such fiscal year exceeds the remaining amount of the Capex Term Loan Commitments at such time, then Agent may permit Borrower to reduce the amount of the mandatory prepayment that would otherwise be due and payable pursuant to this Section 2.4(e)(v) to the extent of such excess (but not to an amount that is less than $0).
