Mandatory Prepayments of Term Loans. (a) Prior to the Tranche A Term Loan Repayment Date, except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment Date, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases. (b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), an amount equal to 100% of such Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, 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 of the applicable Class as set forth in Section 2.16(e). (c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date. (d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date. (e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans. (f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders).
Appears in 2 contracts
Samples: Term Loan and Revolving Credit Agreement (Federal Mogul Corp), Term Loan and Revolving Credit Agreement (Federal-Mogul Corp)
Mandatory Prepayments of Term Loans. (a) Prior Within one-hundred and eighty (180) days after the Borrower's or any Restricted Subsidiary's receipt of any Net Cash Proceeds from any Asset Sale (other than Excluded Asset Sales) which when aggregated with the Net Cash Proceeds from other Asset Sales (other than Excluded Asset Sales) consummated during the preceding twelve-month period are greater than $500,000, the Borrower shall make or cause to be made a mandatory prepayment of the Tranche A Term Loan Repayment Date, except as set forth Obligations in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to one hundred percent (100% %) of such Net Cash Proceeds in excess of $500,000 for such twelve-month period; provided, however, that the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party which the Borrower or such Restricted Subsidiary shall, within one-hundred and eighty (excluding any Indebtedness permitted to be incurred under Section 6.02180) shall be applied to the prepayment days of the Tranche B Term Loans as set forth receipt thereof, use to acquire assets of a like nature to those sold in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment Date, an amount equal to 100% of Asset Sale in replacement thereof shall not be included in determining the Net Cash Proceeds for such Fiscal Year. Notwithstanding the foregoing, during the existence of a Default, if the Borrower or any Subsidiary shall consummate any Asset Sale (other than an Excluded Asset Sale) in which the sale price exceeds $100,000, or shall not have so reinvested proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied such Asset Sale consummated prior to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date occurrence of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital ExpenditureDefault, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as then the Borrower shall have complied with the provisions of Section 5.09, immediately make or cause to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have be made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the mandatory prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), an amount equal to 100% of such Net Cash Proceeds Proceeds.
(b) Within thirty (30) days after the required date for delivery of the annual audited financial statements required to be delivered pursuant to Section 6.1(A)(iii) for each Cash Flow Period, the Borrower shall calculate Excess Cash Flow for such Cash Flow Period and shall make a mandatory prepayment in an amount equal to (i) seventy-five percent (75%) of such Excess Cash Flow in excess of $250,000 if Xxxxx 0, Xxxxx 0 or Level 3 pricing shall be applied applicable as of the end of such Cash Flow Period determined by reference to the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as table set forth in Section 2.16(e2.15(D)(ii), and (ii) within ten fifty percent (1050%) Business Days after the day of receipt such Excess Cash Flow in excess of any such Net Cash Proceeds by any Group Member; provided that no prepayment $250,000 if Xxxxx 0, Xxxxx 0 or Level 6 pricing shall be applicable as of the Term Loans end of either Class shall be required to be made pursuant to this subsection until the amount of Net such Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant Flow Period determined by reference to the immediately preceding sentence, 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 of the applicable Class as table set forth in Section 2.16(e2.15(D)(ii).
(c) Commencing with Notwithstanding anything contained in the fiscal year foregoing Section 2.5(B)(i)(a), upon the consummation of the Borrower ending December 31any Financing by any Restricted Subsidiary, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the immediately upon such Restricted Subsidiary's receipt of Net Cash Proceeds from such Financing, make a mandatory prepayment of the Tranche B Term Loans as set forth Obligations in Section 2.16(ean amount equal to the lesser of (1) on one hundred percent (100%) of such Net Cash Proceeds minus amounts from such Net Cash Proceeds utilized to repay or prepay Indebtedness of such Restricted Subsidiary (other than Indebtedness which is subordinated to the Prepayment Application Dateclaims of the Lenders with respect to such Restricted Subsidiary) minus the fair market value of any assets acquired with the proceeds of such Financing and (2) the amount of the Borrower's Investment in such Restricted Subsidiary minus the fair market value of any assets acquired with the proceeds of such Financing.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year Nothing in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower this Section 2.5(B)(i) shall be applied construed to constitute the prepayment of the Tranche B Term Loans as set forth Lenders' consent to any transaction referred to in clause (a) above which is not expressly permitted by Section 2.16(e) on the Prepayment Application Date6.3(B).
(e) Any amount Each mandatory prepayment required by clauses (a), (b) and (c) of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required this Section 2.5(B) and Section 6.2(G) shall be referred to herein as a "Designated Prepayment". Designated Prepayments shall be allocated and applied to the prepayment Obligations as follows:
(I) the amount of each Designated Prepayment shall be applied pro rata to the unpaid installments of the Term Loans Loans, on a ratable basis based upon the respective amounts of either Class pursuant to this Section 2.16 shall be allocated ratably among such installments; and
(II) following the payment in full of the Term Loan Lenders Loans, the amount of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 each Designated Prepayment shall be applied to reduce ratably repay all outstanding Swing Line Loans and then to repay Revolving Loans and following the then remaining principal repayment installments payment in full of the Term Loans Revolving Loans, the amount of each Designated Prepayment shall be applied first to interest on the Reimbursement Obligations, then to principal on the Reimbursement Obligations, then to fees on account of Letters of Credit and then, to the extent any L/C Obligations are contingent, deposited with the Agent as cash collateral in respect of such Class L/C Obligations; and
(including III) following the final installment payment in full of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) amounts set forth in Section 2.09(a). The application of any prepayment of clauses (I) and (II) above, the Term Loans pursuant to this Section 2.16 excess remaining amount, if any, shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior returned to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders).
Appears in 2 contracts
Samples: Credit Agreement (Gfsi Inc), Credit Agreement (Gfsi Inc)
Mandatory Prepayments of Term Loans. (ai) Prior to If any Indebtedness shall be incurred by the Tranche A Term Loan Repayment Date, except as set forth Borrower or any of its Subsidiaries (excluding any Indebtedness incurred in the immediately succeeding sentence accordance with respect to the incurrence of Permitted Subordinated IndebtednessSection 6.01), an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) thereof plus the Applicable Prepayment Premium shall be applied to within five Business Days of the receipt of such Net Cash Proceeds toward the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e2.12(c)(iv).
(ii) on If the date Borrower or any of such incurrence. Prior to the Tranche A Term Loan Repayment Date, an amount equal to 100% of the its Subsidiaries shall receive Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition ofthen, or payment with unless a Reinvestment Notice shall be delivered in respect to, any thereof within five Business Days of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral)receipt of such Net Cash Proceeds, an amount equal to 100% of such Net Cash Proceeds plus the Applicable Prepayment Premium shall be applied to within ten Business Days following receipt thereof toward the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after 2.12(c)(iv); provided, that, notwithstanding the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentenceforegoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 2.12(c)(iv).
(iii) No later than the fifth Business Day after the date on which the financial statements with respect to each fiscal year of the Borrower are required to be delivered pursuant to Section 5.01(a), commencing with the fiscal year ending December 31, 2020, the Borrower shall prepay the outstanding principal amount of Term Loans as set forth in Section 2.12(c)(iv) in an aggregate principal amount equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower and its Subsidiaries for the Excess Cash Flow Period then ended, minus (B) the aggregate principal amount of any Term Loans prepaid pursuant to Section 2.12(a), except to the extent financed from Excluded Sources.
(iv) Amounts to be applied in connection with prepayments shall be applied pro rata to the prepayment of the Term Loans of the applicable Class as set forth in Section 2.16(e).
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such ClassSection 2.19. Each prepayment of Term the Loans of either Class made pursuant to under this Section 2.16 2.12(c) shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior accompanied by accrued interest to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders)prepaid.
Appears in 2 contracts
Samples: Successor Agent Agreement, First Amendment to Credit Agreement and Omnibus Amendment to Loan Documents (Eventbrite, Inc.), Credit Agreement (Eventbrite, Inc.)
Mandatory Prepayments of Term Loans. (ai) Prior to If any Indebtedness shall be incurred by the Tranche A Term Loan Repayment Date, except as set forth Borrower or any of its Subsidiaries (excluding any Indebtedness incurred in the immediately succeeding sentence accordance with respect to the incurrence of Permitted Subordinated IndebtednessSection 7.01), an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) thereof shall be applied to within five Business Days of the receipt of such Net Cash Proceeds toward the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e2.12(c)(iii).
(ii) on If the date Borrower or any of such incurrence. Prior to the Tranche A Term Loan Repayment Date, an amount equal to 100% of the its Subsidiaries shall receive Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition ofthen, or payment with unless a Reinvestment Notice shall be delivered in respect to, any thereof within five Business Days of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral)receipt of such Net Cash Proceeds, an amount equal to 100% of such Net Cash Proceeds shall be applied to within ten Business Days following receipt thereof toward the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after 2.12(c)(iii); provided, that, notwithstanding the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentenceforegoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to toward the prepayment of the Term Loans of the applicable Class as set forth in Section 2.16(e).
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date2.12(c)(iii).
(diii) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall Amounts to be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to connection with prepayments shall be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a)2.19. The application of any prepayment of the Term Loans pursuant to this Section 2.16 2.12(c) shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory . Each prepayment of Term the Loans required to be made pursuant to clauses (a) through (d) of under this Section 2.16 (the aggregate amount of such prepayment to 2.12(c) shall be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior accompanied by accrued interest to the date of such prepayment (a “Term Prepayment Date”)on the amount prepaid. Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation prepayment of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(ewith this Section 2.12(c) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower applied first to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the next four installments of each such Class of Term Loans in direct order of maturity and then to prepay all remaining installments thereof pro rata against all such scheduled installments based upon the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders)respective amounts thereof.
Appears in 2 contracts
Samples: Credit Agreement (Cars.com Inc.), Credit Agreement (Cars.com Inc.)
Mandatory Prepayments of Term Loans. The Company shall make a prepayment of the Term Loans upon the occurrence of any of the following (aeach a "Mandatory Prepayment Event") Prior to at the Tranche A Term Loan Repayment Date, except as set forth following times and in the immediately succeeding sentence following amounts (such applicable amounts being referred to as "Designated Proceeds"):
(i) Concurrently with respect to the incurrence receipt by the Company or any Subsidiary of Permitted Subordinated Indebtedness, an amount equal to 100% of the any Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment Date, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition ofSale, or payment with respect to, any of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), in an amount equal to 100% of such Net Cash Proceeds; provided that the foregoing shall not apply to Asset Sales the Net Cash Proceeds shall of which are used by the Company or any Subsidiary to purchase productive assets to be applied used in the business of the Company or such Subsidiary within 120 days after such Asset Sale.
(ii) Concurrently with the receipt by the Company or any Subsidiary of any Net Cash Proceeds from any issuance of equity securities of the Company or any Subsidiary (excluding (each of the following in clauses (x) through (z) being an "Excluded Issuance") (x) any issuance of shares of capital stock, options or warrants to directors, officers, employees, consultants or vendors as compensation for services rendered or pursuant to an employee benefit program, (y) any issuance by a Subsidiary to the prepayment of the Tranche B Term Loans Company or another Subsidiary and (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loansz) as set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt Net Cash Proceeds of any issuance of equity securities of 29 38 the Company to the extent such Net Cash Proceeds are applied to the substantially contemporaneous purchase by any Group Memberthe Company of its equity securities from shareholders of the Company (each such contemporaneous issuance and purchase referred to in this clause (z) being a "Flow-Through Equity Transaction")), in an amount equal to 50% of such Net Cash Proceeds; provided that that, with respect to issuances other than issuances in any offering registered under the Securities Act of 1933 or pursuant to Rule 144A under such Act, no such prepayment of the Term Loans of either Class shall be required with respect to be made pursuant to this subsection until the amount first $25,000,000 of Net Cash Proceeds to be applied to make of such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to issuances by the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to Company after the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Term Loans of the applicable Class as set forth in Section 2.16(e).
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Closing Date.
(diii) Commencing Concurrently with the fiscal year receipt by the Company or any Subsidiary of any Net Cash Proceeds from any issuance of any Debt of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance Company or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class Subsidiary (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicableexcluding (x) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to Debt permitted by clauses (a) through (d) and (f) through (j) of this Section 2.16 10.7 and (y) the aggregate amount of such prepayment Subordinated Debt referred to be made in any single instance, a “Term Payment Amount”clauses (i) at least five and (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstandingii) of the Term Payment Amount. Any Term Loan Lender definition of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”"Subordinated Debt"). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to 100% of such unused portion Net Cash Proceeds.
(it being understood iv) Within 95 days after the end of each Fiscal Year (commencing with Fiscal Year 2000), in an amount equal to 66-2/3% of Excess Cash Flow for such Fiscal Year; provided that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16x) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver for purposes of this clause (fiv) only, the 2000 Fiscal Year shall require the consent be deemed to be comprised of the Required Lenders third and fourth Fiscal Quarters of such Fiscal Year only and (and y) if the Senior Debt to EBITDA Ratio at the end of such Fiscal Year is less than 1.5:1, then the amount of the required prepayment shall not require the consent be 33-1/3% of any other group or number of Lenders)Excess Cash Flow for such Fiscal Year.
Appears in 1 contract
Mandatory Prepayments of Term Loans. (a) Prior Upon the consummation of any Asset Sale or any Financing by the Borrower or any Subsidiary of the Borrower, other than those Asset Sales permitted pursuant to Section 7.3(B)(i) except to the Tranche A Term Loan Repayment Date, except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of extent that the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment DateAsset Sale, an amount equal to 100% of when combined with the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to all such Asset Sales during the prepayment of immediately preceding twelve-month period, do not exceed $1,000,000, and except as provided in the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end second sentence of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be2.5(B)(i)(a), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day Borrower's or any of its Subsidiaries' (i) receipt by a Group Member of the any Net Cash Proceeds of from any such Asset Sale or Recovery Event that results from the sale or other disposition ofFinancing, or payment with respect to(ii) conversion to cash or Cash Equivalents of non-cash proceeds (whether principal or interest and including securities, release of escrow arrangements or lease payments) received from any Asset Sale, the Borrower shall make a mandatory prepayment of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), Obligations in an amount equal to one hundred percent (100% %) of such Net Cash Proceeds or such proceeds converted from non-cash to cash or Cash Equivalents. Net Cash Proceeds of Asset Sales of capital assets with respect to which the Borrower shall have given the Agent written notice of its intention to replace such capital assets within nine months following such Asset Sale shall not be applied subject to the prepayment provisions of the Tranche B Term Loans first sentence of this Section 2.5(B)(i)(a) unless and to the extent that such applicable period shall have expired without such replacement having been made.
(b) Simultaneously with the delivery of the annual audited financial statements required to be delivered pursuant to Section 7.1(A)(iii) for each fiscal year beginning with the fiscal year ending December 31, 1998, the Borrower shall calculate Excess Cash Flow for such fiscal year and shall make a mandatory prepayment, payable not later than the earlier of ten (10) days after such financial statements and calculation are delivered or one hundred (100) days after the end of such fiscal year, in an amount equal to one hundred percent (100.0%) of such Excess Cash Flow in excess of $1,000,000 or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) Borrower's Leverage Ratio as set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans end of either Class shall be required its most recently completed fiscal year is less than 3.5 to be made pursuant to this subsection until 1.0, seventy-five percent (75.0%) of such Excess Cash Flow in excess of $1,000,000 or, if the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, 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 Borrower's Leverage Ratio as of the Term Loans end of the applicable Class as set forth its most recently completed fiscal year is less than 2.5 to 1.0, fifty percent (50.0%) of such Excess Cash Flow in Section 2.16(e)excess of $1,000,000.
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year Nothing in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower this Section 2.5(B)(i) shall be applied construed to constitute the prepayment Lenders' consent to any transaction referred to in clause (a) above which is not expressly permitted by the terms of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Datethis Agreement.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to by clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, 2.5(B) shall instead be referred to herein as a "Designated Prepayment." Designated Prepayments shall be allocated and applied to the Obligations as follows:
(I) the amount of each Designated Prepayment (other than a Designated Prepayment attributable to the issuance of Subordinated Notes pursuant to the High Yield Note Agreement) shall be applied to prepay Tranche C each of the then remaining installments payable under the Term Loans in accordance Sections 2.16(ethe inverse order of maturity;
(II) and 2.16(f) or (ii) the amount of each Designated Prepayment attributable to the issuance of Subordinated Notes pursuant to the High Yield Note Agreement shall be applied as follows: first, to repay in all other casesfull the Subordinated Notes issued to LDI, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion Ltd. as of the Retained Amount shall not have been used by Closing Date; second, at the Borrower Borrower's option, up to repay any $5,000,000 may be applied to reduce the outstanding balance of its other Indebtedness by the date Revolving Credit Obligations (without reducing the “Cut-off Date”) that is thirty (30) Business Days after Aggregate Revolving Loan Commitment); and third, to each of the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay then remaining installments payable under the Term Loans in the inverse order of maturity; and
(III) following the payment in full of the Declining Lenders Term Loans, the amount of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders each Designated Prepayment shall be required pursuant applied to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term repay Revolving Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to shall reduce Revolving Loan Commitments only at the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent option of the Required Lenders Lenders) and following the payment in full of the Revolving Loans, the amount of each Designated Prepayment shall be applied first to interest on the Reimbursement Obligations, then to principal on the Reimbursement Obligations, then to fees on account of Letters of Credit and then, to the extent any L/C Obligations are contingent, deposited with the Agent as cash collateral in respect of such L/C Obligations.
(e) On the date any Designated Prepayment is received by the Agent, such prepayment shall be applied first to Floating Rate Loans and shall not require the consent to any Eurodollar Rate Loans maturing on such date and then to subsequently maturing Eurodollar Rate Loans in order of any other group or number of Lenders)maturity.
Appears in 1 contract
Samples: Credit Agreement (Finishmaster Inc)
Mandatory Prepayments of Term Loans. (ai) Prior On or prior to the Tranche A earlier of (A) the fifth (5th) day after the delivery of annual financial statements for a fiscal year in accordance with Section 5.01(a) or (B) the ninety-fifth (95th) day of each fiscal year, commencing with the fiscal year ending December 31, 2019, the Borrower shall prepay the Loans in an amount equal to (x) fifty percent (50%) of Excess Cash Flow (if any) for such fiscal year less (y) all voluntary prepayments of Term Loan Repayment DateLoans (not made in lieu of mandatory prepayments) made during such fiscal year pursuant to Section 2.25 and all repayments and prepayments of the loans under the Revolving Credit Agreement made during such fiscal year to the extent accompanied by a corresponding permanent reduction in commitments under the Revolving Credit Agreement, except to be applied as set forth in the immediately succeeding sentence Section 2.26(b); provided, that if, with respect to any fiscal year in which a mandatory prepayment pursuant to this Section 2.26(a)(i) is otherwise due, the incurrence Total Net Leverage Ratio as of Permitted Subordinated Indebtednessthe end of such fiscal year is less than (A) 3.50:1.00, then the Borrower shall prepay the Loans in an amount equal to 100% (x) twenty-five percent (25%) of Excess Cash Flow (if any) for such fiscal year less (y) all voluntary prepayments of Term Loans (not made in lieu of mandatory prepayments) made during such fiscal year pursuant to Section 2.25 and all repayments and prepayments of the loans under the Revolving Credit Agreement made during such fiscal year to the extent accompanied by a corresponding permanent reduction in commitments under the Revolving Credit Agreement, to be applied as set forth in Section 2.26(b) or (B) 2.50:1.00, then the Borrower shall prepay the Loans in an amount equal to zero (0%) of Excess Cash Flow (if any) for such fiscal year.
(ii) Concurrently with the incurrence of any Indebtedness by any Loan Party or any of its Subsidiaries (other than Indebtedness permitted under Section 6.01), the Borrower shall prepay the Loans in an amount equal to the Prepayment Price multiplied by the amount of such Net Cash Proceeds Debt Proceeds, to be applied as set forth in Section 2.26(b). Nothing in this Section 2.26(a)(ii) shall be construed to permit or waive any Default or Event of Default arising from any incurrence of Indebtedness not permitted under the terms of this Agreement.
(iii) Concurrently with the receipt by any Loan Party or any of its Subsidiaries of any proceeds from any Disposition (excluding other than any Indebtedness Disposition permitted under Section 6.05(a)) in excess of $2,500,000 in any fiscal year (individually or in the aggregate over the course of a fiscal year), the Borrower shall prepay the Loans in an amount equal to the Prepayment Price multiplied by the amount of such Net Disposition Proceeds from such Disposition, to be incurred under applied as set forth in Section 6.022.26(b); provided, that the Borrower may, at its option by notice in writing to the Administrative Agent on or prior to the Disposition giving rise to such Net Disposition Proceeds, within three hundred sixty-five (365) days after such event (or enters into a binding commitment thereof within said three hundred sixty-five (365) day period and subsequently makes such reinvestment within an additional one hundred eighty (180) days thereafter), reinvest such Net Disposition Proceeds in assets to be used in the business of the Borrower so long as no Default or Event of Default shall have occurred and be continuing, in each case as certified by the Borrower in writing to the Administrative Agent. Nothing in this Section 2.26(a)(iii) shall be construed to permit or waive any Default or Event of Default arising from any Disposition not permitted under the terms of this Agreement.
(iv) Concurrently with the receipt by any Loan Party or any of its Subsidiaries of any proceeds from any Casualty Event, the Borrower shall prepay the Loans in an amount equal to the Prepayment Price multiplied by the amount of such Net Casualty Proceeds, to be applied as set forth in Section 2.26(b); provided, that so long as no Event of Default shall have occurred and be continuing, the Borrower may, at its option by notice in writing to the Administrative Agent no later than thirty (30) days following the occurrence of the Casualty Event resulting in such Net Casualty Proceeds), apply such Net Casualty Proceeds to the rebuilding or replacement of such damaged, destroyed or condemned assets or property so long as such Net Casualty Proceeds are in fact used to rebuild or replace the damaged, destroyed or condemned assets or property within three hundred sixty-five (365) days following the receipt of such Net Casualty Proceeds (or enters into a binding commitment thereof within said three hundred sixty-five (365) day period and subsequently makes such reinvestment within an additional one hundred eighty (180) days thereafter), with the amount of Net Casualty Proceeds unused after such period to be applied as set forth in Section 2.26(b); provided, further, that at any time when any Default or Event of Default shall have occurred and be continuing, such Net Casualty Proceeds shall be deposited in an account maintained with the Administrative Agent for, at the Administrative Agent’s discretion (acting upon instructions from the Required Lenders), prepayment of the Loans or disbursement at the request of the Borrower to pay for such rebuilding or replacement. Nothing in this Section 2.26(a)(iv) shall be construed to permit or waive any Default or Event of Default arising from, directly or indirectly, any Casualty Event.
(v) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to Section 2.26 shall be applied, first, to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior 2.26(c), second, to the Tranche A Term Loan Repayment Dateaccrued and unpaid interest thereon and, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied third, to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), an amount equal to 100% of such Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, 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 of the applicable Class as set forth in Section 2.16(e).
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Classoutstanding Obligations. Each prepayment of Term the Loans of either Class made pursuant to this under Section 2.16 2.26 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior accompanied by accrued interest to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders)prepaid.
Appears in 1 contract
Samples: Second Lien Credit Agreement (RTI Surgical Holdings, Inc.)
Mandatory Prepayments of Term Loans. (a) Prior to Upon the Tranche A Term Loan Repayment Date, except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds consummation of any incurrence of Indebtedness Asset Sale by Holdings, any other Borrower or any Subsidiary of any Loan Party Borrower (excluding any Indebtedness permitted to be incurred under Section 6.02) shall be applied to the prepayment of the Tranche B Term Loans other than Excluded Equity Sales, Excluded Transfers and other than as set forth in Section 2.16(e6.2(G) on the date of such incurrence. Prior with respect to the Tranche A Term Loan Repayment Date, an amount equal to 100% of the insurance and condemnation proceeds and other than other Asset Sales which generate Net Cash Proceeds of less than $250,000 in any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtednessone fiscal year) of any Loan Party shall be applied to the prepayment of the Tranche B Term Loans or, except as set forth otherwise expressly provided in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from 2.5(B)(i)(d)(II), the issuance of Permitted Designated Subordinated any Indebtedness for borrowed money of Holdings or any other Borrower (other than Indebtedness permitted pursuant to Section 6.3(A)(f) and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may bei)), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day applicable Borrower's or Subsidiary's (i) receipt of receipt by a Group Member of the any Net Cash Proceeds of from any such Asset Sale or Recovery Event that results from the sale or other disposition ofissuance of Indebtedness for borrowed money, or payment with respect to(ii) conversion to cash or Cash Equivalents of non-cash proceeds (whether principal or interest and including securities, release of escrow arrangements or lease payments) received from any Asset Sale, Holdings shall make or cause to be made a mandatory prepayment of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), Obligations in an amount equal to one hundred percent (100% %) of such Net Cash Proceeds shall be applied (or in the case of the issuance of Subordinated Notes pursuant to the prepayment Supplemental Subordinated Note Agreement, not less than $20,000,000) or such proceeds converted from non-cash to cash or Cash Equivalents in the case of Asset Sales, including, without limitation, Asset Sales consisting of the Tranche B Term Loans issuance of Capital Stock or ownership, membership or other equity interests.
(orb) Simultaneously with the delivery of the annual audited financial statements required to be delivered pursuant to Section 6.1(A)(iii) for each Cash Flow Period, if the Tranche B Repayment Date has occurredHoldings shall calculate Excess Cash Flow for such Cash Flow Period and shall make a mandatory prepayment, the Tranche C Term Loans) as set forth in Section 2.16(e) within payable no later than ten (10) Business Days days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be calculation is made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely and financial statements are delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, in an amount equal to the Reinvestment Prepayment Amount difference between (1) seventy-five percent (75%), or, with respect to each Cash Flow Period beginning with the relevant Reinvestment Event shall be applied Cash Flow Period ending December 31, 1999 or, if Holdings effects an offering of Subordinated Notes in an aggregate principal amount of not less than $100,000,000 in accordance with Section 6.2(M), with respect to each Cash Flow Period beginning with the Cash Flow Period ending December 31, 1997, fifty percent (50%) of such Excess Cash Flow and (2) all prepayments of Term Loans made during such period (other than repayments of Term Loans to the prepayment extent financed with new Term Loans) and the aggregate amount of all permanent reductions in the Term Loans of the applicable Class as set forth in Section 2.16(e)Aggregate Revolving Loan Commitment made during such period.
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year Nothing in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower this Section 2.5(B)(i) shall be applied construed to constitute the prepayment of the Tranche B Term Loans as set forth Lenders' consent to any transaction referred to in Section 2.16(e2.5(B)(i)(a) on above which is not expressly permitted by the Prepayment Application Dateterms of this Agreement.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to by clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e2.5(B) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant referred to this sentence prior to the Tranche B Repayment Date)herein as a "DESIGNATED PREPAYMENT". Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this Except as set forth in clause (f) below and in Section 6.2(G) with respect proceeds of insurance and condemnation, Designated Prepayments shall require be allocated and applied to the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders).Obligations as follows:
Appears in 1 contract
Samples: Credit Agreement (Aas Capital Corp)
Mandatory Prepayments of Term Loans. (a) Prior Upon the consummation of any Asset Sale (other than sales of North American Interconnect product lines for an aggregate amount not to exceed $15,000,000) by the Borrower or any Subsidiary of the Borrower, except to the Tranche A Term Loan Repayment Date, except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of extent that the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment DateAsset Sale, an amount equal to 100% of when combined with the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to all such Asset Sales during the prepayment of immediately preceding twelve-month period, do not exceed $10,000,000, and except as provided in the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end second and third sentences of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may beSECTION 2.5(B)(I)(A), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day Borrower's or any of its Subsidiaries' (i) receipt by a Group Member of the any Net Cash Proceeds from any such Asset Sale, or (ii) conversion to cash or Cash Equivalents of non-cash proceeds (whether principal or interest and including securities, release of escrow arrangements or lease payments) received from any Asset Sale or Recovery Event that results from Sale, the sale or other disposition of, or payment with respect to, any Borrower shall make a mandatory prepayment of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), Obligations in an amount equal to one hundred percent (100% %) of such Net Cash Proceeds shall be applied or such proceeds converted from non-cash to the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt of any such cash or Cash Equivalents. Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount Asset Sales with respect to which the relevant Reinvestment Event Borrower shall have given the Agent written notice of its intention to replace the assets within six months, in the case of a sale of Equipment, or nine months, in the case of a sale of real property, following such Asset Sale shall not be applied subject to the prepayment provisions of the Term Loans first sentence of this SECTION 2.5(B)(I)(A) unless and to the extent that such applicable Class as set forth in Section 2.16(e)period shall have expired without such replacement having been made.
(cb) Commencing with Upon the fiscal year consummation of any Financing by the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents Subsidiary of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than within three (3) Business Days prior after the Borrower's or any of its Subsidiaries' receipt of any Net Cash Proceeds from any Financing (other than (x) any Financing involving the issuance or incurrence of Indebtedness permitted under SECTION 7.2(A)(III), (IV) or (V), (y) any Financing involving the sale for an aggregate amount not to exceed $30,000,000 during the applicable Term Prepayment Datelife of this Agreement of treasury shares of the Borrower previously purchased by the Borrower, and (z) any other any Financing involving the issuance of Equity Interests which generate Net Cash Proceeds of less than $5,000,000), the Borrower shall make a written notice that any mandatory prepayment otherwise required of the Obligations in an amount equal to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses one hundred percent (a) through (d) of this Section 2.16 not be made100%), in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) or in the case of a any Financing involving the issuance of Equity Interests (other than the sale for an aggregate amount not to exceed $30,000,000 during the life of this Agreement of treasury shares of the Borrower previously purchased by the Borrower) which generate Net Cash Proceeds of $5,000,000 or more, fifty percent (50%) of such Net Cash Proceeds.
(c) Nothing in this SECTION 2.5(B)(I) shall be construed to constitute the Lenders' consent to any transaction referred to in CLAUSES (A) and (B) above which is not expressly permitted by the terms of this Agreement.
(d) Each mandatory prepayment of Tranche B Term Loans required to be made pursuant to clause by CLAUSES (bA) and (B) of this Section 2.16, SECTION 2.5(B) shall instead be referred to herein as a "Designated Prepayment." Designated Prepayments shall be allocated and applied to the Obligations as follows:
(I) the amount of each Designated Prepayment shall be applied to prepay Tranche C each of the then remaining installments payable under the Term Loans in accordance Sections 2.16(ethe inverse order of maturity; and
(II) and 2.16(f) or (ii) following the payment in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion full of the Retained Amount Term Loans, the amount of each Designated Prepayment shall not have been used by the Borrower be applied to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Revolving Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to shall reduce Revolving Loan Commitments only at the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent option of the Required Lenders Lenders) and following the payment in full of the Revolving Loans, the amount of each Designated Prepayment shall be applied first to interest on the Reimbursement Obligations, then to principal on the Reimbursement Obligations, then to fees on account of Letters of Credit and then, to the extent any L/C Obligations are contingent, deposited with the Agent as cash collateral in respect of such L/C Obligations.
(e) On the date any Designated Prepayment is received by the Agent, such prepayment shall be applied first to Floating Rate Loans and shall not require the consent of to any other group or number of Lenders)Eurodollar Rate Loans maturing on such date and then to subsequently maturing Eurodollar Rate Loans.
Appears in 1 contract
Samples: Credit Agreement (CTS Corp)
Mandatory Prepayments of Term Loans. (ai) Prior Concurrently with the receipt by the Borrower or any Subsidiary of any Specified Term Proceeds, the Borrower shall make a prepayment of principal of the Term Loans by an amount (rounded down, if necessary, to an integral multiple of $500,000) equal to the Tranche A aggregate amount of all Specified Term Loan Repayment Date, except as set forth in Proceeds received on or after the immediately succeeding sentence Closing Date (including such Specified Term Proceeds) minus all Specified Term Proceeds previously applied to prepay Term Loans pursuant to this clause (b). ----------
(ii) Concurrently with respect to the incurrence receipt by the Borrower or any Subsidiary of Permitted Subordinated Indebtedness, an amount equal to 100% of the any Net Cash Proceeds from the issuance of any incurrence of Indebtedness of any Loan Party (excluding any other than Indebtedness permitted to be incurred under pursuant to Section 6.02) 8.2), the Borrower ------------ shall be applied to the make a prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment Date, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), an amount equal to 100% of such Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment principal of the Term Loans by an amount (rounded down, if necessary, to an integral multiple of either Class shall be required $500,000) equal to be made pursuant to this subsection until the aggregate amount of Net Cash Proceeds to be received from all such issuances after the Closing Date minus any portion thereof previously applied to prepay Term Loans.
(iii) Concurrently with the receipt by the Borrower or any Subsidiary of any Net Cash Proceeds from the issuance of any equity securities (other than any issuance of any equity securities in connection with a Permitted Acquisition, the exercise of warrants or employee stock options or the Borrower's employee stock purchase plan), the Borrower shall make such a prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, 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 principal of the Term Loans by an amount (rounded down, if necessary, to an integral multiple of $500,000) equal to 50% of the applicable Class as set forth in Section 2.16(e)aggregate amount of Net Cash Proceeds received from all such issuances after the Closing Date minus any portion thereof previously applied to prepay Term Loans.
(civ) Commencing Concurrently with the fiscal year delivery of the Borrower ending December 31, 2008, and ending with Compliance Certificate as of the end of any fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occursyear, the Applicable Amount Borrower shall prepay Term Loans by an amount (rounded down, if necessary, to an integral multiple of $500,000) equal to the Adjusted Specified Percentage of Excess Cash Flow for any such fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Dateyear.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders).
Appears in 1 contract
Samples: Credit Agreement (Grubb & Ellis Co)
Mandatory Prepayments of Term Loans. (a) Prior Upon the consummation of any Asset Sale by the Borrower or any Subsidiary of the Borrower, other than those Asset Sales permitted pursuant to SECTION 7.3(B)(i), (ii), (iii), (iv) and (v), except to the Tranche A Term Loan Repayment Dateextent that the Net Cash Proceeds of such Asset Sale, when combined with the Net Cash Proceeds of all such Asset Sales during the immediately preceding twelve-month period, do not exceed $25,000,000 plus the "Carryover Amount" (as defined below), and except as set forth provided in the immediately succeeding second sentence with respect of this SECTION 2.5(B)(i)(a), within five (5) Business Days after the Borrower's or any of its Subsidiaries' (i) receipt of any Net Cash Proceeds from any such Asset Sale, or (ii) conversion to cash or Cash Equivalents of non-cash proceeds (whether principal or interest and including securities, release of escrow arrangements or lease payments) received from any Asset Sale, the incurrence Borrower shall make a mandatory prepayment of Permitted Subordinated Indebtedness, the Obligations in an amount equal to one hundred percent (100% %) of the excess of (x) such Net Cash Proceeds or such proceeds converted from non-cash to cash or Cash Equivalents over (y) $25,000,000 PLUS the Carryover Amount for such twelve-month period; PROVIDED, that, notwithstanding the foregoing, the Borrower shall make mandatory prepayments of the Obligations in an amount equal to one hundred percent (100%) of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted or such proceeds converted from non-cash to be incurred under Section 6.02) shall be applied to cash or Cash Equivalents from the prepayment sale of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment Date, an amount equal to 100% PET business unit of the Borrower and the disposition of the Aerospace business unit of the Borrower. So long as no Default shall have occurred and is continuing, Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness Asset Sales (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied other than Net Cash Proceeds related to the prepayment sale of the Tranche B Term Loans as set forth in Section 2.16(ePET business unit of the Borrower and the disposition of the Aerospace business unit of the Borrower) on with respect to which the 121st day (Borrower shall have given the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant Administrative Agent written notice prior to the proviso set forth at consummation of the end Asset Sale of this sentence) the Borrower's or the applicable Subsidiary's intention to the extent reinvest such Net Cash Proceeds are (i) not from in the issuance of Permitted Designated Subordinated Indebtedness Borrower's and (ii) not used prior to such 121st day to make (u) a Capital Expenditureits Subsidiaries' existing business, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (and in either case so long as connection with which the Borrower or the applicable Subsidiary shall have complied with commenced such reinvestment within 360 days after such Asset Sale and shall have completed such reinvestment within twenty-four (24) months after such Asset Sale, shall not be subject to the provisions of Section 5.09, the first sentence of this SECTION 2.5(B)(i)(a) unless and to the extent applicable, with respect to any assets acquired by any Group Member pursuant to that such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower applicable period shall have complied with expired without such reinvestment having been made; PROVIDED, that upon the provisions occurrence of Section 5.09any Default, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment portion of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are as has not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower been reinvested shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered be paid to the Administrative Agent within three (3) Business Days after the day of receipt by to be applied as a Group Member mandatory prepayment of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), Obligations in an amount equal to 100% of such Net Cash Proceeds shall be applied or such proceeds converted from non-cash to the prepayment of the Tranche B Term Loans (orcash or Cash Equivalents. The "CARRYOVER AMOUNT" for any twelve-month period means an amount, if positive, equal to (1) $25,000,000 MINUS (2) the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after the day aggregate amount of receipt of any such Net Cash Proceeds by of all Asset Sales during the immediately preceding twelve-month period; PROVIDED, that the Carryover Amount shall not at any Group Member; provided that no prepayment time exceed $25,000,000, and the Carryover Amount shall be reduced to zero if a Default shall have occurred and is continuing as of the Term Loans of either Class shall be date any mandatory prepayment is required to be made pursuant to this subsection until SECTION 2.5(B)(i)(a). No portion of the amount Carryover Amount available in any twelve-month period can be utilized in the following twelve-month period. Without in any way limiting the foregoing but without duplication of the foregoing, upon the consummation of any "Asset Sale" (as such term is defined in the Senior Note Indenture and the Subordinated Note Indenture) where, but for the provisions of this sentence, some or all of the Net Cash Proceeds would constitute "Excess Proceeds" (as such term is defined in the Senior Note Indenture or the Subordinated Note Indenture), prior to the date on which the Borrower shall be applied required to make such an offer to purchase the Senior Notes and/or the Subordinated Notes, the Borrower shall make a mandatory prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to of the immediately preceding sentence, on each Reinvestment Prepayment Date, Obligations in an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment one hundred percent (100%) of the Term Loans of the applicable Class as set forth in Section 2.16(e).
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of such Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders).
Appears in 1 contract
Mandatory Prepayments of Term Loans. (a) Prior In addition to the other prepayments required by this Section 2.4, on the last CFCCA-P Business Day of each month (each such last CFCCA-P Business Day, a "Payment Date") commencing with December 31, 2002, the Borrower shall make a prepayment of the Term Loans (and, to the extent indicated in Section 2.4(e) or (f), of the Revolving Credit Loans) in an amount equal to the sum of the Asset Pool Prepayment Amounts in respect of such Payment Date as determined for each Asset Pool. Each such prepayment shall be applied (x) until the Tranche A of Term Loan Repayment Loans made in respect of such Asset Pool has been paid in full, to such Tranche of Term Loans (ratably as among Lenders to which such Loans are outstanding) and shall be applied first to the principal amount of such Tranche which would be due under Section 2.4(c) on the next Annual Payment Date with respect to such Asset Pool (or on such Annual Payment Date, except if such Payment Date falls on such Annual Payment Date), and then to amounts that would be due on succeeding Annual Payment Dates of Asset Pool, in direct order of maturity and (y) thereafter, as set forth in the immediately succeeding sentence with respect Section 2.4(e).
(b) In addition to the incurrence other prepayments required by this Section 2.4, not later than the Payment Date following the occurrence of Permitted Subordinated Indebtednessan NPV Deficiency in respect of any Asset Pool, the Borrower shall make a prepayment of the Term Loans in an amount equal sufficient so that after giving effect to 100% of such payment, the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) NPV Deficiency will no longer exist. Each such prepayment shall be applied to the Tranche of Term Loans made in respect of such Asset Pool (ratably as among Lenders to which such Loans are outstanding) and shall be applied first to the principal amount of such Tranche which would be due under Section 2.4(c) on the last Annual Payment Date with respect to such Asset Pool, and then to the amounts of such Tranche that would be due on earlier Annual Payment Dates with respect to such Asset Pool, in inverse order of maturity.
(c) In addition to the other prepayments required by this Section 2.4, on each Payment Date occurring in the month in which the anniversary (whether first, second, third or fourth) of the acquisition of an Asset Pool occurs (each said anniversary month Payment Date with respect to an Asset Pool, an "Annual Payment Date" for such Asset Pool), Borrower shall make a prepayment of the Tranche B principal amount of the Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior equal to the Tranche A sum of the Annual Term Loan Repayment DatePrepayment Amounts as determined for each Asset Pool for which such Payment Date constitutes an Annual Payment Date after giving effect to the application of other prepayments made pursuant to other subsections of this Section 2.4 (to the extent that pursuant to such other subsections, an amount equal such other prepayments are applied to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any such Annual Term Loan Party Prepayment Amount). Each such prepayment shall be applied to the prepayment Term Loan Tranche relating to the Asset Pool in respect of which such payment is made or, if the Tranche B Agent determines that the appropriate application as among Asset Pools is not free from doubt, to such Tranches of Term Loans as set forth the Agent shall determine (in each case, ratably as among Lenders to which such Loans are outstanding).
(i) In addition to the other prepayments required by this Section 2.16(e) on 2.4, Borrower shall pay or cause to be paid to the 121st day Agent the full amount of Extraordinary Transaction Proceeds (or, in the “Payment Date”) case where such proceeds are received by FC Holdings and do not relate directly or indirectly to any PFAL Portfolio Entity, the amount thereof to which FC Holdings is entitled, after the date payment of such incurrence (as such date may any portion thereof required to be extended remitted to CFSC pursuant to the proviso set forth at Holdings CFSC Loan Agreement) on each date when such Proceeds or any portion thereof are received by Borrower or any Primary Obligor or, in the end case of this sentencethe receipt of any such proceeds by any Secondary Obligor, on the earlier of (x) of the day on which such Proceeds or any portion thereof are paid to Borrower or a Primary Obligor and (y) the sixtieth day after receipt thereof by such Secondary Obligor, for application to the unpaid principal amount of the Term Notes and accrued interest on such principal amount being prepaid (and to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (indicated in either case so long as the Borrower shall have complied with the provisions of Section 5.092.4(f), to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may beRevolving Credit Loans), (x) a Permitted Acquisition (so long as the . If Borrower shall have complied with the provisions of Section 5.09, delivers to the extent applicable, with Agent evidence satisfactory to the Agent that such amounts were received in respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into specified Asset Pools, or if the Agent otherwise determines that there is a binding letter of intent reasonable basis for allocating such prepayment to one or definitive purchase documentation with respect thereto (ormore particular Asset Pools, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds prepayment shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (xoutstanding Tranche(s) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), an amount equal to 100% of such Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, 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 of the applicable Class as set forth in Section 2.16(e).
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans made in respect of either Class made pursuant to this Section 2.16 shall be such Asset Pool(s) (if applied to reduce more than one Tranche, ratably as among different Tranches or in such other proportions as the then remaining principal repayment installments of the Term Loans of Agent may determine, and ratably as among Lenders to which such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in fulloutstanding) and, secondafter any such Tranche is repaid in full, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate remaining amount of such prepayment to be made in any single instance, a “Term Payment Amount”(if any) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated applied to such Declining Lenders (i) in the case Tranche shall be applied ratably to all other outstanding Tranches of a prepayment of Tranche B Term Loans required (or in such other proportions as the Agent may determine, and ratably as among Lenders to which such Tranches of Term Loans are outstanding). Otherwise, such prepayment shall be made pursuant to applied in accordance with clause (biii) below. All amounts applied to a particular Tranche of this Section 2.16, Loans shall instead be applied first to prepay the principal amount of such Tranche C Term Loans which would be due under Section 2.4(c) on the final Annual Payment Date of such Tranche, and then to the amounts of such Tranche that would be due on earlier Annual Payment Dates of such Tranche, in accordance Sections 2.16(e) and 2.16(f) or inverse order of maturity.
(ii) In addition to the other prepayments required by this Section 2.4 (but without duplication of any such prepayment), in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent event that FC Commercial makes any portion voluntary prepayment of principal of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date FC Commercial (the “Cut-off Date”PFAL) that is thirty (30) Business Days after the applicable Term Prepayment DatePledged Note, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to the amount of such unused portion (it being understood that no voluntary prepayment of Tranche C principal on the day on which such prepayment is received by Borrower. If Borrower delivers to the Agent evidence satisfactory to the Agent that such amount represents proceeds of payments received in respect of one or more specified Asset Pools or if the Agent otherwise determines that there is a reasonable basis for allocating such amount to one or more particular Asset Pools, such prepayment shall be applied to the outstanding Tranche(s) of Term Loans made in respect of Declining such Asset Pool(s) (if applied to more than one Tranche, ratably as among different Tranches or in such other proportions as the Agent may determine, and ratably as among Lenders to which Loans of such Tranche(s) are outstanding) and, after any such Tranche is repaid in full, the remaining amount of such prepayment (if any) which would have been applied to such Tranche shall be required applied ratably to all other outstanding Tranches of Term Loans (or in such other proportions as the Agent may determine, and ratably as among Lenders to which such Tranches of Term Loans are outstanding). Otherwise, such prepayment shall be applied in accordance with clause (iii) below. All amounts applied to a particular Tranche of Loans shall be applied first to the principal amount of such Tranche which would be due under Section 2.4(c) on the final Annual Payment Date of such Tranche, and then to the amounts of such Tranche that would be due on earlier Annual Payment Dates of such Tranche, in inverse order of maturity.
(iii) If the Agent determines that any amount of Extraordinary Transaction Proceeds received pursuant to this sentence prior to the Tranche B Repayment Date). Any clause (i) or any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders).FC Commercial
Appears in 1 contract
Samples: Term Loan and Revolving Credit Agreement (Firstcity Financial Corp)
Mandatory Prepayments of Term Loans. (a) Prior Upon the consummation of any Asset Sale or any Financing by the Borrower or any Subsidiary of the Borrower, other than those Asset Sales permitted pursuant to Section 7.3(B)(i) except to the Tranche A Term Loan Repayment Date, except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of extent that the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment DateAsset Sale, an amount equal to 100% of when combined with the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to all such Asset Sales during the prepayment of immediately preceding twelve-month period, do not exceed $1,000,000, and except as provided in the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end second sentence of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be2.5(B)(i)(a), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day Borrower's or any of its Subsidiaries' (i) receipt by a Group Member of the any Net Cash Proceeds of from any such Asset Sale or Recovery Event that results from the sale or other disposition ofFinancing, or payment with respect to(ii) conversion to cash or Cash Equivalents of non-cash proceeds (whether principal or interest and including securities, release of escrow arrangements or lease payments) received from any Asset Sale, the Borrower shall make a mandatory prepayment of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), Obligations in an amount equal to one hundred percent (100% %) of such Net Cash Proceeds shall be applied or such proceeds converted from non-cash to the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt of any such cash or Cash Equivalents. Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans Asset Sales of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount capital assets with respect to which the relevant Reinvestment Event Borrower shall have given the Agent written notice of its intention to replace such capital assets within nine months following such Asset Sale shall not be subject to the provisions of the first sentence of this Section 2.5(B)(i)(a) unless and to the extent that such applicable period shall have expired without such replacement having been made.
(b) Nothing in this Section 2.5(B)(i) shall be applied construed to constitute the prepayment Lenders' consent to any transaction referred to in clause (a) above which is not expressly permitted by the terms of the Term Loans of the applicable Class as set forth in Section 2.16(e)this Agreement.
(c) Commencing with Each mandatory prepayment required by clause (a) of this Section 2.5(B) shall be referred to herein as a "Designated Prepayment." Designated Prepayments shall be allocated and applied to the fiscal year Obligations as follows:
(I) the amount of each Designated Prepayment (other than a Designated Prepayment attributable to the Borrower ending December 31, 2008, and ending with issuance of Subordinated Notes pursuant to the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower High Yield Note Agreement) shall be applied to the prepayment each of the Tranche B then remaining installments payable under the Term Loans in the inverse order of maturity;
(II) the amount of each Designated Prepayment attributable to the issuance of Subordinated Notes pursuant to the High Yield Note Agreement shall be applied as set forth follows: first, to each of the then remaining installments payable under the Term Loans in Section 2.16(ethe inverse order of maturity; second, at the Borrower's option, up to $5,000,000 may be applied to reduce the outstanding balance of the Revolving Credit Obligations (without reducing the Aggregate Revolving Loan Commitment); third to reduce the outstanding balance of the Acquisition Facility Loans; and fourth, to repay in full the Subordinated Notes issued to the Subordinated Noteholder as of November 19, 1997; and
(III) following the payment in full of the Term Loans, the amount of each Designated Prepayment shall be applied to repay Revolving Loans (but shall reduce Revolving Loan Commitments only at the option of the Lenders with Revolving Loan Pro Rata Shares greater than fifty percent (50%)) and following the payment in full of the Revolving Loans, to repay Acquisition Facility Loans (but shall reduce Acquisition Facility Commitments only at the option of Lenders with Acquisition Facility Pro Rata Shares greater than fifty percent (50%)) and following the payment in full of the Acquisition Facility Loans, the amount of each Designated Prepayment shall be applied first to interest on the Prepayment Application DateReimbursement Obligations, then to principal on the Reimbursement Obligations, then to fees on account of Letters of Credit and then, to the extent any L/C Obligations are contingent, deposited with the Agent as cash collateral in respect of such L/C Obligations.
(d) Commencing with On the fiscal year of date any Designated Prepayment is received by the Borrower ending December 31Agent, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower such prepayment shall be applied first to the prepayment of the Tranche B Term Floating Rate Loans as set forth in Section 2.16(e) and to any Eurodollar Rate Loans maturing on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required such date and then to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to subsequently maturing Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Rate Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion order of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders)maturity.
Appears in 1 contract
Samples: Credit Agreement (Finishmaster Inc)
Mandatory Prepayments of Term Loans. (ai) Prior to If any Indebtedness shall be incurred by the Tranche A Term Loan Repayment Date, except as set forth Borrower or any of its Subsidiaries (excluding any Indebtedness incurred in the immediately succeeding sentence accordance with respect to the incurrence of Permitted Subordinated IndebtednessSection 6.01), an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) thereof shall be applied to within five Business Days of the receipt of such Net Cash Proceeds toward the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e2.12(c)(iv).
(ii) on If the date Borrower or any of such incurrence. Prior to the Tranche A Term Loan Repayment Date, an amount equal to 100% of the its Subsidiaries shall receive Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition ofthen, or payment with unless a Reinvestment Notice shall be delivered in respect to, any thereof within five Business Days of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral)receipt of such Net Cash Proceeds, an amount equal to 100% of such Net Cash Proceeds shall be applied to within ten Business Days following receipt thereof toward the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after 2.12(c)(iv); provided, that, notwithstanding the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentenceforegoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to toward the prepayment of the Term Loans of the applicable Class as set forth in Section 2.16(e).
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date2.12(c)(iv).
(diii) Commencing No later than the fifth Business Day after the date on which the financial statements with the respect to each fiscal year of the Borrower are required to be delivered pursuant to Section 5.01(a), commencing with the fiscal year ending December 31, 20082019, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to prepay the prepayment outstanding principal amount of the Tranche B Term Loans as set forth in Section 2.16(e2.12(c)(iv) on in an aggregate principal amount equal to (A) the Prepayment Application DateRequired Excess Cash Flow Percentage of Excess Cash Flow of the Borrower and its Subsidiaries for the Excess Cash Flow Period then ended, minus (B) (i) the aggregate principal amount of any Term Loans, Incremental Term Loans, Incremental Equivalent Debt or Refinancing Indebtedness in the form of Term Loans prepaid pursuant to Section 2.12(a) or the applicable provisions of the documentation governing such Incremental Equivalent Debt or Refinancing Indebtedness prior to such date and (ii) the aggregate principal amount of any Revolving Credit Loans and Refinancing Indebtedness in the form of Revolving Credit Loans (in each case, to the extent accompanied by a permanent reduction of the relevant Revolving Credit Commitment) voluntarily prepaid or purchased pursuant to Section 2.12(a) or the applicable provisions of the documentation governing such Refinancing Indebtedness prior to such date.
(eiv) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required Amounts to be applied in connection with prepayments shall be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a)2.19. The application of any prepayment of the Term Loans pursuant to this Section 2.16 2.12(c) shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory . Each prepayment of Term the Loans required to be made pursuant to clauses (a) through (d) of under this Section 2.16 (the aggregate amount of such prepayment to 2.12(c) shall be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior accompanied by accrued interest to the date of such prepayment (a “Term Prepayment Date”)on the amount prepaid. Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class Loans in accordance with Sections 2.12(c)(i) and (a “Declining Lender”ii) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, above shall instead be applied to prepay Tranche C all remaining installments of each Class of Term Loans pro rata against all such scheduled installments based upon the respective amounts thereof. Each prepayment of the Term Loans in accordance with Sections 2.16(e2.12(c)(iii) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders above shall be required pursuant applied to this sentence prior first, to the Tranche B Repayment Date). Any prepayment next eight scheduled installments thereof in direct order of Tranche C Term Loans required to be made pursuant maturity, and second, to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to remaining installments on a pro rata basis against all such scheduled installments based upon the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders)respective amounts thereof.
Appears in 1 contract
Samples: Credit Agreement (Eventbrite, Inc.)
Mandatory Prepayments of Term Loans. The Borrower will prepay the Term Loans as follows:
(i) If after the date hereof any Indebtedness (other than Indebtedness permitted under clauses (a) Prior to through (h) of Section 6.01) is incurred by the Tranche A Term Loan Repayment Date, except as set forth in the immediately succeeding sentence with respect to the incurrence Borrower or any of Permitted Subordinated Indebtednessits Subsidiaries, an amount equal to 100% the Relevant Share of the Net Cash Proceeds of any incurrence of such Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) shall be applied to on each Relevant Application Date towards the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e2.11(b)(iv); provided that no prepayment shall be required under this paragraph (b)(i) on if at the time required for such prepayment the Consolidated Leverage Ratio (calculated as of the most recently ended fiscal quarter of the Borrower) is less than or equal to 4.00 to 1.00.
(ii) If after the date hereof the Borrower or any of such incurrence. Prior its Subsidiaries shall receive Net Cash Proceeds from any Recovery Event, then, unless a Reinvestment Notice shall be delivered to the Tranche A Term Loan Repayment DateAdministrative Agent in respect thereof within five Business Days after such Recovery Event, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), an amount equal to 100% Relevant Share of such Net Cash Proceeds shall be applied to on each Relevant Application Date towards the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member2.11(b)(iv); provided that no prepayment of that, notwithstanding the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentenceforegoing, on each Reinvestment Prepayment Date, an amount equal to the Relevant Share of the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to towards the prepayment of the Term Loans of the applicable Class as set forth in Section 2.16(e).
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e2.11(b)(iv); provided, further, that no prepayment shall be required under this paragraph (b)(ii) on if at the Prepayment Application Datetime required for such prepayment the Consolidated Leverage Ratio (calculated as of the most recently ended fiscal quarter of the Borrower) is less than or equal to 4.00 to 1.00.
(diii) Commencing with If after the fiscal year of date hereof the Borrower ending December 31or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or any Prepayment Asset Sale, 2008, and ending with an amount equal to the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount Relevant Share of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower such Net Cash Proceeds shall be applied to on each Relevant Application Date towards the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e2.11(b)(iv); provided that (except with respect to any Prepayment Asset Sale) on no prepayment shall be required under this paragraph (b)(iii) if at the Prepayment Application Datetime required for such prepayment the Consolidated Leverage Ratio (calculated as of the most recently ended fiscal quarter of the Borrower) is less than or equal to 3.50 to 1.00.
(eiv) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 2.11(b) shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior applied ratably to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate remaining principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders)installments thereof.
Appears in 1 contract
Samples: Credit Agreement (Teleflex Inc)
Mandatory Prepayments of Term Loans. (a) Prior to From and after the Tranche A repayment in full of the Senior Term Loan Repayment DateAgreement, except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment Date, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), an amount equal to 100% of such Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, 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 of the applicable Class as set forth in Section 2.16(e).
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans upon the distribution to Drive ABS LP or other release of the Declining Lenders of the applicable Classany cash proceeds generated from Available Residual Distributions on or following each Monthly Payment Date (each such date, in a "Repayment Date"), an aggregate principal amount equal to such unused portion Available Residual Distributions.
(it being understood that no prepayment b) From and after the repayment in full of Tranche C the Senior Term Loan Agreement, promptly (and in any event within five days) after each Transfer of any asset by the Borrower or any Subsidiary, in contravention of this Agreement, the Borrower shall apply an amount equal to the Net Proceeds from such Transfer (less an amount expected to be used by the seller thereof for the payment of taxes, if any, reasonably attributable to any such Transfer) toward the payment of the principal of the Term Loans of Declining Lenders shall be required and accrued interest thereon and amounts payable pursuant to this sentence prior Section 3.5 in connection therewith by paying an amount equal to said Net Proceeds to the Tranche B Repayment DateAgent to be so applied.
(c) From and after the repayment in full of the Senior Term Loan Agreement, promptly (and in any event within five days) after each issuance by the Borrower or any Subsidiary, of equity or subordinated debt (other than subordinated debt issued pursuant to Section 4.3 of the Shareholders Agreement) after the Closing Date (to the extent same is permitted by this Agreement). Any prepayment , the Borrower shall apply an amount equal to the 100% of Tranche C the net proceeds therefrom toward the payment of the principal of the Term Loans required and accrued interest thereon and amounts payable pursuant to Section 3.5 in connection therewith by paying an amount equal to said 100% of such net proceeds to the Agent to be made pursuant to the preceding sentence (but not any other prepayment so applied. Amounts prepaid pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall 2.4 may not be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders)reborrowed.
Appears in 1 contract
Samples: Subordinate Capital Loan Agreement (Firstcity Financial Corp)
Mandatory Prepayments of Term Loans. (a) Prior Upon the consummation of any Asset Sale by the Borrower or any Subsidiary of the Borrower, other than those Asset Sales permitted pursuant to Section 7.3(B), except to the Tranche A Term Loan Repayment Date, except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of extent that the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment DateAsset Sale, an amount equal to 100% of when combined with the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to all such Asset Sales during the prepayment immediately preceding four fiscal quarters of the Tranche B Term Loans Borrower do not exceed $500,000, and except as set forth provided in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end second sentence of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be2.5(B)(i)(a), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day Borrower's or any of its Subsidiaries' (i) receipt by a Group Member of the any Net Cash Proceeds from any such Asset Sale, or (ii) conversion to cash or Cash Equivalents of non-cash proceeds (whether principal or interest and including securities, release of escrow arrangements or lease payments) received from any Asset Sale or Recovery Event that results from Sale, the sale or other disposition of, or payment with respect to, any of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), an amount equal to 100% of such Net Cash Proceeds Borrower shall be applied to the make a mandatory prepayment of the Tranche B Term Loans Obligations (or, if to be applied in accordance with the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as priority set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, 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 of the applicable Class as set forth in Section 2.16(e).
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through clause (d) of this Section 2.16 2.5(B)(i)) in an amount equal to one hundred percent (the aggregate amount 100%) of such prepayment Net Cash Proceeds or such proceeds converted from non-cash to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class cash or Cash Equivalents received by the total Term Loans Borrower or such Subsidiary. Net Cash Proceeds of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made Asset Sales with respect to which the Term Loans held by such Term Loan Lender pursuant Borrower shall have given the Agent written notice of its intention to clauses (a) through (d) of this Section 2.16 not be madereplace the assets within six months, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment sale of Tranche B Term Loans equipment or other assets (other than real property), or twelve months, in the case of a sale of real property, following such Asset Sale shall not be subject to the provisions of the first sentence of this Section 2.5(B)(i)(a) unless and to the extent that such applicable period shall have expired without such replacement having been made.
(b) Simultaneously with the delivery of the annual audited financial statements required to be made delivered pursuant to Section 7.1(A)(ii) for each fiscal year beginning with the fiscal year ending June 30, 1999, the Borrower shall calculate Excess Cash Flow for such fiscal year and shall make a mandatory prepayment, payable not later than the earlier of ten (10) days after such financial statements and calculation are delivered or one hundred and fifteen (115) days after the end of such fiscal year, in an amount equal to fifty percent (50.0%) of such Excess Cash Flow.
(c) Nothing in this Section 2.5(B)(i) shall be construed to constitute the Lenders' consent to any transaction referred to in clause (a) above which is otherwise prohibited by the terms of this Agreement.
(d) Each mandatory prepayment required by clauses (a) and (b) of this Section 2.16, 2.5(B) shall instead be referred to herein as a "Designated Prepayment." Designated Prepayments shall be allocated and applied to the Obligations as follows:
(I) the amount of each Designated Prepayment shall be applied to prepay Tranche C each of the then remaining installments payable under the Term Loans, on a ratable basis based on the respective amounts of such installments; and
(II) following the payment in full of the Term Loans, the amount of each Designated Prepayment shall be applied to repay Revolving Loans (but shall reduce Revolving Loan Commitments only at the option of the Borrower).
(e) On the date any Designated Prepayment is received by the Agent, such prepayment shall be applied first to Floating Rate Loans and to any Eurodollar Rate Loans maturing on such date and then to subsequently maturing Eurodollar Rate Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion order of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders)maturity.
Appears in 1 contract
Samples: Credit Agreement (FTD Corp)
Mandatory Prepayments of Term Loans. (a) Prior Upon the consummation of any Asset Sale by the Company or any Subsidiary of the Company, other than those Asset Sales permitted pursuant to Section 6.9(i), (iii), (iv), (v), (vi) and (ix), except to the Tranche A Term Loan Repayment Date, except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of extent ----------------------------------------------- that the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment DateAsset Sale, an amount equal to 100% of when combined with the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) all such Asset Sales during the immediately preceding twelve-month period, do not exceed $1,000,000 or the Approximate Equivalent Amount of any Loan Party Agreed Currency other than Dollars, and except as provided in the second sentence of this Section 2.5.3(B)(i)(a), within three (3) ---------------------- Business Days after the Company's or any of its Subsidiaries' (i) receipt of any Net Cash Proceeds from any such Asset Sale, or (ii) conversion to cash or Cash Equivalents of non-cash proceeds (whether principal or interest and including securities, release of escrow arrangements or lease payments) received from any Asset Sale, the Company shall, or shall be applied to cause the other Borrowers to, make a mandatory prepayment of the Tranche B Term Loans as set forth Obligations in Section 2.16(ean amount equal to one hundred percent (100%) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are or such proceeds converted from non-cash to cash or Cash Equivalents. Net Cash Proceeds of Asset Sales with respect to which the Company shall have given the Agent written notice of its intention to replace the assets within twelve (12) months, following such Asset Sale shall not be subject to the provisions of the first sentence of this Section 2.5.3(B)(i)(a) unless and ---------------------- to the extent that such applicable period shall have expired without such replacement having been made.
(i) not from Except as provided in clause (b)(ii) below, upon the issuance -------------- consummation of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment any Financing by the Company or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment Subsidiary of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved InvestmentCompany, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day Company's or any of its Subsidiaries' receipt by a Group Member of the any Net Cash Proceeds of any Asset Sale or Recovery Event that results from such Financing, the sale or other disposition ofCompany shall, or payment with respect shall cause the other Borrowers to, any make a mandatory prepayment of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), Obligations in an amount equal to one hundred percent (100% %) of such Net Cash Proceeds.
(ii) Notwithstanding the foregoing, Net Cash Proceeds subject to clause (i) above shall be applied not include Net Cash Proceeds received in connection ---------- with the issuance of any Capital Stock, other than Disqualified Stock, to any employee, executive, director or officer and if the prepayment Company or any Subsidiary of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurredCompany issues Equity Interests of such Person or any Permitted Refinancing Indebtedness of such Person, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt proceeds of any such offering of Equity Interests or Indebtedness may be used to refinance the Seller Subordinated Notes or the Seller Equity Interests and will not be included in Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, 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 of the applicable Class as set forth in Section 2.16(e)Proceeds.
(c) Commencing Simultaneously with the delivery of the annual audited financial statements required to be delivered pursuant to Section 6.1(i) -------------- for each fiscal year beginning with the fiscal year of the Borrower ending December 31November 30, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs1999, the Applicable Amount of the Adjusted Company shall calculate Excess Cash Flow for any such fiscal year of and shall, or shall cause the Borrower shall be applied to the other Borrowers to, make a mandatory prepayment of the Tranche B Term Loans as set forth in Section 2.16(eObligations, payable not later than the earlier of ten (10) on days after such financial statements and calculation are delivered or one hundred (100) days after the Prepayment Application Date.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans end of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Classfiscal year, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders).to:
Appears in 1 contract
Samples: Credit Agreement (Tokheim Corp)
Mandatory Prepayments of Term Loans. (a) Prior In addition to the Tranche A Term Loan Repayment Date, except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% repayment obligations of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) shall be applied to the prepayment of the Tranche B Term Loans as Borrowers set forth in Section 2.16(e) on 2.07 hereof, the date of such incurrence. Prior to the Tranche A Term Loan Repayment Date, an amount equal to 100% Borrowers shall make a prepayment of the Term Loans until paid in full upon the occurrence of any of the following at the following times and in the following amounts:
(i) Concurrently with the receipt by any Loan Party of any Net Cash Proceeds of from any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to the prepayment of the Tranche B Term Loans as set forth Qualifying Disposition, in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), an amount equal to 100% of such Net Cash Proceeds.
(ii) Concurrently with the receipt by any Loan Party of any Net Cash Proceeds shall be applied from any issuance of Equity Interests of Loan Party (excluding (w) any issuance of Equity Interests pursuant to any employee or director option program, benefit plan or compensation program, (x) any issuance by a Subsidiary to any Borrower or another Subsidiary, (y) any issuance of Equity Interests in Holdings, the Net Cash Proceeds of which are used for Permitted Acquisitions to the prepayment extent otherwise permitted under this Agreement and (z) issuances of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurredEquity Interests in Holdings, the Tranche C Term LoansNet Cash Proceeds of which are used for Capital Expenditures or other purposes (each a “Permitted Alternative Transaction”) agreed to by the Required Lenders), in an amount equal to 100% of such Net Cash Proceeds; provided, however, that as a condition to the exclusions set forth in Section 2.16(esubsections (y) and (z) above, the Borrowers agree that all Net Cash Proceeds subject thereto shall be deposited with the Agent as Cash Collateral until (A) the consummation of the applicable Permitted Acquisition or Permitted Alternative Transaction or (B) the making of the Capital Expenditure, and such Permitted Acquisition, Permitted Alternative Transaction or Capital Expenditure shall be consummated or completed, as applicable, within ten three (103) Business Days after the day months of receipt of any such Net Cash Proceeds by any Group MemberProceeds; provided provided, further, however, that no prepayment of the Term Loans of either Class exclusion set forth in subsection (z) above shall only be required available as an exclusion from this Section 2.05(b)(ii) for up to be made pursuant to this subsection until the amount $10,000,000 of Net Cash Proceeds during the term of this Agreement.
(iii) Concurrently with the receipt by any Loan Party of any Net Cash Proceeds from any issuance of any Indebtedness of any Loan Party (excluding (i) Indebtedness permitted by Section 7.03 other than clause (e) thereof and (ii) Indebtedness incurred on the Closing Date with respect to the FBI Seller Note), in an amount equal to 100% of such Net Cash Proceeds.
(iv) Simultaneously with the delivery of the annual audited financial statements delivered in connection with Section 6.02(a) (and no later than the date on which such annual audited financial statements are required to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to thereunder) for each Fiscal Year commencing with the immediately preceding sentenceFiscal Year ending December 31, on each Reinvestment Prepayment Date2011, an amount equal to (i) at all times that the Reinvestment Prepayment Amount with respect Total Leverage Ratio at the end of such Fiscal Year is equal to or greater than 1.5 to 1.0, an amount equal to 50% of Excess Cash Flow and (ii) at all times that the Total Leverage Ratio at the end of such Fiscal Year is less than 1.5 to 1.0, an amount equal to 25% of Excess Cash Flow. Excess Cash Flow calculations shall be prepared and delivered to Agent by Borrowers at each such time that Excess Cash Flow prepayments are required to be made hereunder.
(v) Promptly upon receipt by any Borrower, or any of their respective Affiliates, successors or assigns of any payment pursuant to any indemnity provision of the FBI Purchase Agreement, an amount equal to such payment; provided that: (i) if such payment is being made to such Borrower to reimburse any Loan Party for the cost of any claim or expense paid by such Loan Party to a Person that is not an Affiliate of any Loan Party and/or any judgment, settlement or award in connection therewith (or are to be used to pay the same within ninety days following the receipt of such Net Cash Proceeds; provided that to the relevant Reinvestment Event extent any such amounts are not so applied, they shall be applied to prepay the Loans and/or L/C Obligations on or before such ninetieth day), then the Net Cash Proceeds of all such payment may be retained by the applicable Borrower rather than being paid to the Agent under this Section 2.05(b)(v); and (ii) any other such payment not covered by the immediately proceeding clause (i) which is set off against the principal amount of the FBI Seller Note shall not be required to be repaid to Agent under this Section 2.05(b)(v).
(vi) Immediately on any day that the Outstanding Amount of the Term Loans plus the Revolving Loans plus, without duplication, the L/C Obligations exceeds the Aggregate Commitments, in an amount equal to such excess; provided, however, that Borrowers shall have the option to reduce the Revolving Loans in an amount equal to or greater than such excess in lieu of making a prepayment of the Term Loans of the applicable Class Loan as set forth in Section 2.16(erequired by this subsection (vi).
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders).
Appears in 1 contract
Mandatory Prepayments of Term Loans. (ai) Prior to If any Indebtedness shall be incurred by the Tranche A Term Loan Repayment Date, except as set forth Borrower or any of its Subsidiaries (excluding any Indebtedness incurred in the immediately succeeding sentence accordance with respect to the incurrence of Permitted Subordinated IndebtednessSection 6.01), an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) thereof plus the Applicable Prepayment Premium shall be applied to within five (5) Business Days of the receipt of such Net Cash Proceeds toward the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e2.12(c)(iii).
(ii) on If the date Borrower or any of such incurrence. Prior to the Tranche A Term Loan Repayment Date, an amount equal to 100% of the its Subsidiaries shall receive Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition ofthen, or payment with unless a Reinvestment Notice shall be delivered in respect to, any thereof within five (5) Business Days of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral)receipt of such Net Cash Proceeds, an amount equal to 100% of such Net Cash Proceeds plus the Applicable Prepayment Premium shall be applied to within ten Business Days following receipt thereof toward the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after 2.12(c)(iii); provided, that, notwithstanding the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentenceforegoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 2.12(c)(iii).
(iii) Amounts to be applied in connection with prepayments shall be applied pro rata to the prepayment of the Term Loans of the applicable Class as set forth in accordance with Section 2.16(e).
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the 2.19. Each prepayment of the Term Loans of either Class pursuant to under this Section 2.16 2.12(c) shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior accompanied by accrued interest to the date of such prepayment (a “Term Prepayment Date”)on the amount prepaid. Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior Notwithstanding anything to the applicable Term Prepayment Datecontrary herein, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require may waive any of the consent of any other group or number of Lenders).requirements specified in this Section 2.12(c) in their sole discretion
Appears in 1 contract
Mandatory Prepayments of Term Loans. (a) Prior Upon the consummation of any Asset Sale or Financing by the Borrower or any Subsidiary of the Borrower, other than those Asset Sales permitted pursuant to SECTION 7.3(B)(i), (ii) and (iii), except to the Tranche A Term Loan Repayment Date, except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of extent that the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment DateAsset Sale, an amount equal to 100% of when combined with the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) all such Asset Sales during the immediately preceding twelve-month period, do not exceed $5,000,000 or the Approximate Equivalent Amount of any Loan Party shall be applied to Agreed Currency other than Dollars, and except as provided in the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end second sentence of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may beSECTION 2.5(B)(i)(a), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day Borrower's or any of its Subsidiaries' (i) receipt by a Group Member of the any Net Cash Proceeds from any such Asset Sale or Financing, or (ii) conversion to cash or Cash Equivalents of non-cash proceeds (whether principal or interest and including securities, release of escrow arrangements or lease payments) received from any Asset Sale or Recovery Event that results from Financing, the sale or other disposition of, or payment with respect to, any Borrower shall make a mandatory prepayment of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), Obligations in an amount equal to one hundred percent (100% %) of such Net Cash Proceeds or such proceeds converted from non-cash to cash or Cash Equivalents. Net Cash Proceeds of Asset Sales with respect to which the Borrower shall have given the Agent written notice of its intention to replace the assets within six (6) months, in the case of a sale of Equipment, or twelve (12) months, in the case of a sale of real property, following such Asset Sale shall not be subject to the provisions of the first sentence of this SECTION 2.5(B)(i)(a) unless and to the extent that such applicable period shall have expired without such replacement having been made.
(b) Simultaneously with the delivery of the annual audited financial statements required to be delivered pursuant to SECTION 7.1(A)(ii) for each fiscal year beginning with the fiscal year ending June 30, 1999, the Borrower shall calculate Excess Cash Flow for such fiscal year and shall make a mandatory prepayment of the Obligations, payable not later than the earlier of ten (10) days after such financial statements and calculation are delivered or one hundred (100) days after the end of such fiscal year, in an amount equal to seventy-five percent (75%) of such Excess Cash Flow.
(c) If at any time, (x) the Dollar Amount of the Revolving Credit Obligations exceeds 105% of the Aggregate Revolving Loan Commitment or (y) the Dollar Amount of all Eurocurrency Rate Loans and L/C Obligations in Agreed Currencies other than Dollars (other than in respect of the Indemnification Letter) exceeds 105% of the Maximum Eurocurrency Amount (utilizing the exchange rates determined in accordance with SECTION 2.2), the Borrower for the ratable benefit of the Lenders shall immediately prepay Loans (to be applied to such Loans as the Borrower shall direct at the time of such payment) in an aggregate amount such that after giving effect thereto (A) the Dollar Amount of the Revolving Credit Obligations is less than or equal to the Aggregate Revolving Loan Commitments and (B) the Dollar Amount of all Eurocurrency Rate Loans and L/C Obligations in Agreed Currencies other than Dollars is less than or equal to the Maximum Eurocurrency Amount (other than in respect of the Indemnification Letter).
(d) Nothing in this SECTION 2.5(B)(i) shall be construed to constitute the Lenders' consent to any transaction referred to in CLAUSE (a) above which is not expressly permitted by the terms of this Agreement.
(e) Each mandatory prepayment required by CLAUSES (a) and (b) of this SECTION 2.5(B) shall be referred to herein as a "Designated Prepayment." Designated Prepayments shall be allocated and applied to the Obligations as follows:
(I) the amount of each Designated Prepayment shall be applied ratably to the prepayment of Tranche A Term Loans and the Tranche B Term Loans to each of the then remaining installments payable under such Term Loans in the inverse order of maturity; and
(or, if II) following the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth payment in Section 2.16(e) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment full of the Term Loans of either Class shall be required to be made pursuant to this subsection until Loans, the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Designated Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to repay Revolving Loans (but shall reduce Revolving Loan Commitments only at the prepayment option of the Term Loans Required Lenders) and following the payment in full of the applicable Class as set forth in Section 2.16(e).
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occursRevolving Loans, the Applicable Amount amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower each Designated Prepayment shall be applied first to interest on the Reimbursement Obligations, then to principal on the Reimbursement Obligations, then to fees on account of Letters of Credit and then, to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(d) Commencing extent any L/C Obligations are contingent, deposited with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year Agent as cash collateral in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans respect of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche L/C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar LoansObligations.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders).
Appears in 1 contract
Samples: Credit Agreement (Ifr Systems Inc)
Mandatory Prepayments of Term Loans. (a) Prior Upon (1) the consummation of any Asset Sale (other than sales of inventory or worn-out or obsolete property in the ordinary course of business) by the Borrower or any Subsidiary of the Borrower or (2) the Borrower or any Subsidiary suffering an Event of Loss, except to the Tranche A Term Loan Repayment Date, except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of extent that the Net Cash Proceeds of any incurrence such Asset Sale or Event of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment DateLoss, an amount equal to 100% of when combined with the Net Cash Proceeds of any incurrence all such Asset Sales and Events of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to Loss during the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) immediately preceding 12-month period, do not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditureexceed $3,000,000, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day Borrower's or any of its Subsidiaries' (i) receipt by a Group Member of the any Net Cash Proceeds from any such Asset Sale or Event of Loss, or (ii) conversion to cash or Cash Equivalents of non-cash proceeds (whether principal or interest and including securities, release of escrow arrangements or lease payments) received from any Asset Sale or Recovery Event that results from of Loss, the sale or other disposition of, or payment with respect to, any Borrower shall make a mandatory prepayment of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), Obligations in an amount equal to one hundred percent (100% %) of such Net Cash Proceeds shall be applied or such proceeds converted from non-cash to the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt of any such cash or Cash Equivalents. Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans Events of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentenceLoss, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to which the relevant Reinvestment Borrower shall have given the Agent written notice of its intention to repair or replace the property subject to any such Event of Loss within one year following such Event of Loss, shall not be applied subject to the prepayment provisions of the Term Loans first sentence of this Section 2.5(B)(i)(a) unless and to the extent that such applicable Class as set forth in Section 2.16(e)period shall have expired without such repair or replacement having been made.
(cb) Commencing with Upon the fiscal year consummation of any Financing by the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents Subsidiary of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than within three (3) Business Days after the Borrower's or any of its Subsidiaries' receipt of any Net Cash Proceeds from any Financing (other than any Financing involving the issuance or incurrence of Indebtedness permitted under Section 7.2(A)(iii), (v) or (vi), the Borrower shall make a mandatory prepayment of the Obligations in an amount equal to one hundred percent (100%) of such Net Cash Proceeds.
(c) On or before March 31 of each year (beginning with March 31, 2003) for the most recently ended fiscal year, commencing with the fiscal year ending December 31, 2002, the Borrower shall make a mandatory prepayment in an amount equal to 90% of the Excess Cash Flow, if positive, for such prior fiscal year.
(d) Nothing in this Section 2.5(B)(i) shall be construed to constitute the Lenders' consent to any transaction referred to in clauses (a), (b) and (c) above which is not expressly permitted by the terms of this Agreement.
(e) Each mandatory prepayment required by this Section 2.5(B)(i) shall be referred to herein as a "Designated Prepayment." Designated Prepayments shall be allocated and applied to the applicable Term Prepayment DateObligations as follows:
(I) the first $50,000,000 of the aggregate amount of all Designated Prepayments made on or after November 30, a written notice that any mandatory prepayment otherwise required to 2001 shall be made with respect to applied ratably between the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event and the portion of such prepayment which otherwise would have been Supplemental Syndicated Loans and allocated to such Declining Lenders (i) each of the then remaining installments payable under the Term Loans and the Supplemental Syndicated Loans in the case inverse order of a prepayment maturity;
(II) following the prepayments specified in subsection (I) above, the amount of Tranche B each Designated Prepayment shall be applied ratably between the Term Loans required and the Supplemental Syndicated Loans and allocated to be made pursuant to clause each of the then remaining installments payable under the Term Loans and the Supplemental Syndicated Loans ratably; and
(bIII) following the payment in full of this Section 2.16the Term Loans and the Supplemental Syndicated Loans, the amount of each Designated Prepayment shall instead be applied to prepay Tranche C Term repay Revolving Loans in accordance Sections 2.16(e(and shall reduce Revolving Loan Commitments) and 2.16(f) or (ii) following the payment in all other casesfull of the Revolving Loans, the amount of each such Designated Prepayment shall instead be retained by applied first to interest on the Borrower (Reimbursement Obligations, then to principal on the “Retained Amount”). To Reimbursement Obligations, then to fees on account of Letters of Credit and then, to the extent that any portion L/C Obligations are contingent, deposited with the Agent as cash collateral in respect of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche L/C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause Obligations.
(f) On the date any Designated Prepayment is received by the Agent, such prepayment shall require the consent of the Required Lenders (be applied first to Floating Rate Loans and shall not require the consent of to any other group or number of Lenders)Eurodollar Rate Loans maturing on such date and then to subsequently maturing Eurodollar Rate Loans.
Appears in 1 contract
Samples: Credit Agreement (CTS Corp)
Mandatory Prepayments of Term Loans. (ai) Prior to If any Indebtedness shall be incurred by the Tranche A Term Loan Repayment Date, except as set forth Borrower or any of its Subsidiaries (excluding any Indebtedness incurred in the immediately succeeding sentence accordance with respect to the incurrence of Permitted Subordinated IndebtednessSection 7.01), an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) thereof shall be applied to within five Business Days of the receipt of such Net Cash Proceeds toward the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e2.12(c)(iii).
(ii) on If the date Borrower or any of such incurrence. Prior to the Tranche A Term Loan Repayment Date, an amount equal to 100% of the its Subsidiaries shall receive Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition ofthen, or payment with unless a Reinvestment Notice shall be delivered in respect to, any thereof within five Business Days of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral)receipt of such Net Cash Proceeds, an amount equal to 100% of such Net Cash Proceeds shall be applied to within ten Business Days following receipt thereof toward the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after 2.12(c)(iii); provided, that, notwithstanding the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentenceforegoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to toward the prepayment of the Term Loans of the applicable Class as set forth in Section 2.16(e).
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date2.12(c)(iii).
(diii) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall Amounts to be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to connection with prepayments shall be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a)2.19. The application of any prepayment of the Term Loans pursuant to this Section 2.16 2.12(c) shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory . Each prepayment of Term the Loans required to be made pursuant to clauses (a) through (d) of under this Section 2.16 (the aggregate amount of such prepayment to 2.12(c) shall be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior accompanied by accrued interest to the date of such prepayment (a “Term Prepayment Date”)on the amount prepaid. Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment AmountLoans in accordance with this Section 2.12(c) shall be applied first to prepay the next four installments of each such Class of Term Loans in direct order of maturity and then to prepay all remaining installments thereof pro rata against all such scheduled installments based upon the respective amounts thereof. Any Term Loan Lender been applicable to such Loan, for the period from the date of such event to the last day of the applicable Class then current Interest Period therefor (a “Declining Lender”) may elector, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required failure to be made pursuant to clause (b) of this Section 2.16borrow, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e) and 2.16(f) convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion amount of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, interest which would accrue on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate such principal amount equal for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such unused portion (it being understood period, for dollar deposits of a comparable amount and period from other banks in the eEurodollar market. A certificate of any Lender setting forth any amount or amounts that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant such Lender is entitled to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment receive pursuant to this Section 2.16) prior shall be delivered to the Non-Call Expiration Date Borrower and shall be accompanied by conclusive absent manifest error. The Borrower shall pay such Lender the Applicable Premium. It is understood that, pursuant to Section 9.10, amount shown as due on any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders)such certificate within 30 days after receipt thereof.
Appears in 1 contract
Samples: Credit Agreement (Cars.com Inc.)
Mandatory Prepayments of Term Loans. (a) Prior Upon the consummation of any Asset Sale by the Borrower or any Subsidiary of the Borrower other than those Asset Sales permitted pursuant to Section 7.3(B)(i), (ii), (iii), (iv) and (v), except to the Tranche A Term Loan Repayment Date, except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of extent that the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment DateAsset Sale, an amount equal to 100% of when combined with the Net Cash Proceeds of all such Asset Sales during the immediately preceding twelve-month period, do not exceed $5,000,000, and except as provided in the second and third sentences of this Section 2.5(B)(i)(a), within fifteen (15) Business Days after the Borrower's or any incurrence of Permitted Subordinated Indebtedness its Subsidiaries' (including Permitted Designated Subordinated Indebtednessi) receipt of any Loan Party Net Cash Proceeds from any such Asset Sale, or (ii) conversion to cash or Cash Equivalents of non-cash proceeds (whether principal or interest and including securities, release of escrow arrangements or lease payments) received from any Asset Sale, the Borrower shall be applied to the make a mandatory prepayment of the Tranche B Term Loans as set forth Obligations in Section 2.16(ean amount equal to one hundred percent (100%) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not or such proceeds converted from the issuance non-cash to cash or Cash Equivalents. Net Cash Proceeds of Permitted Designated Subordinated Indebtedness and (ii) not used prior Asset Sales with respect to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as which the Borrower shall have complied with given the Agent written notice of its intention to replace the assets within six months, in the case of a sale of Equipment, or twelve months, in the case of a sale of real property, following such Asset Sale shall not be subject to the provisions of the first sentence of this Section 5.09, 2.5(B)(i)(a) unless and to the extent applicable, with respect to any assets acquired by any Group Member pursuant to that such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower applicable period shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to expired without such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have replacement having been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesmade.
(b) Unless a Reinvestment Notice is delivered to Upon the Administrative Agent consummation of any Financing by the Borrower or any Subsidiary of the Borrower, except as provided in the second sentence of this Section 2.5(B)(i)(b), within three (3) Business Days after the day Borrower's or any of its Subsidiaries' receipt by of any Net Cash Proceeds from such Financing, the Borrower shall make a Group Member mandatory prepayment of the Obligations in an amount equal to one hundred percent (100%) of such Net Cash Proceeds. Net Cash Proceeds of Financings consisting of Permitted Refinancing Indebtedness or which are used, after written notice by the Borrower to the Agent thereof, for any Asset Sale Permitted Acquisition or Recovery Event that results from any Restricted Payment permitted under Section 7.3(F) shall not be subject to the sale or other disposition of, or payment with respect to, any provisions of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), an amount equal to 100% first sentence of such Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in this Section 2.16(e) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, 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 of the applicable Class as set forth in Section 2.16(e2.5(B)(i)(b).
(c) Commencing Simultaneously with the fiscal year delivery of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occursannual audited financial statements required to be delivered pursuant to Section 7.1(A)(iii) for each Cash Flow Period, the Applicable Amount of the Adjusted Borrower shall calculate Excess Cash Flow for any fiscal year such Cash Flow Period and shall make a mandatory prepayment, payable not later than the earlier of ten (10) days after such financial statements and calculation are delivered or one hundred (100) days after the Borrower shall be applied end of such Cash Flow Period, in an amount equal to the prepayment seventy-five percent (75.0%) of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Datesuch Excess Cash Flow.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year Nothing in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower this Section 2.5(B)(i) shall be applied construed to constitute the prepayment Lenders' consent to any transaction referred to in clauses (a) and (b) above which is not expressly permitted by the terms of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Datethis Agreement.
(e) Any amount Each mandatory prepayment required by clauses (a), (b) and (c) of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required this Section 2.5(B) shall be referred to herein as a "Designated Prepayment." Designated Prepayments shall be allocated and applied to the prepayment Obligations as follows:
(I) the amount of each Designated Prepayment shall be applied pro rata between the Tranche A Term Loans, the Tranche B Term Loans, and, in each case, applied to the remaining installments in the inverse order of maturity; and
(II) following the payment in full of the Term Loans Loans, the amount of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 each Designated Prepayment shall be applied to repay Revolving Loans (but shall reduce ratably Revolving Loan Commitments only at the then remaining principal repayment installments option of the Term Loans Required Revolving Loan Lenders) and following the payment in full of the Revolving Loans, the amount of each Designated Prepayment shall be applied first to interest on the Reimbursement Obligations, then to principal on the Reimbursement Obligations, then to fees on account of Letters of Credit and then, to the extent any L/C Obligations are contingent, deposited with the Agent as cash collateral in respect of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche L/C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar LoansObligations.
(f) The Borrower shall notify the Administrative Agent in writing of So long as any mandatory prepayment of Tranche A Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in are outstanding, any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Tranche B Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that decline any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be madeDesignated Prepayment, in which event case the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead amount declined will be applied to prepay the then remaining installments of the Tranche C A Term Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other casesthe inverse order of maturity; provided, shall instead be retained by the Borrower (the “Retained Amount”). To the extent however, that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require not limit the consent right of the Required Lenders Borrower to make voluntary prepayment pursuant to Section 2.5(A)..
(g) On the date any Designated Prepayment is received by the Agent, such prepayment shall be applied first to Floating Rate Loans and to any Eurodollar Rate Loans maturing on such date and then to subsequently maturing Eurodollar Rate Loans in order of maturity; provided, the Borrower shall not require be required to pay all amounts payable under Section 4.4 in connection with the consent prepayment of any other group or number of Lenders)Eurodollar Rate Loans.
Appears in 1 contract
Samples: Credit Agreement (Printpack Inc)
Mandatory Prepayments of Term Loans. (ai) Prior to If any Indebtedness shall be incurred by the Tranche A Term Loan Repayment Date, except as set forth Borrower or any of its Subsidiaries (excluding any Indebtedness incurred in the immediately succeeding sentence accordance with respect to the incurrence of Permitted Subordinated IndebtednessSection 7.01), an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) thereof shall be applied to within five Business Days of the receipt of such Net Cash Proceeds toward the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e2.12(c)(iii).
(ii) on If the date Borrower or any of such incurrence. Prior to the Tranche A Term Loan Repayment Date, an amount equal to 100% of the its Subsidiaries shall receive Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition ofthen, or payment with unless a Reinvestment Notice shall be delivered in respect to, any thereof within five Business Days of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral)receipt of such Net Cash Proceeds, an amount equal to 100% of such Net Cash Proceeds shall be applied to within ten Business Days following receipt thereof toward the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after 2.12(c)(iii); provided, that, notwithstanding the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentenceforegoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to toward the prepayment of the Term Loans of the applicable Class as set forth in Section 2.16(e).
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date2.12(c)(iii).
(diii) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall Amounts to be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to connection with prepayments shall be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a)2.19. The application of any prepayment of the Term Loans pursuant to this Section 2.16 2.12(c) shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar EurodollarTerm Benchmark Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory . Each prepayment of Term the Loans required to be made pursuant to clauses (a) through (d) of under this Section 2.16 (the aggregate amount of such prepayment to 2.12(c) shall be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior accompanied by accrued interest to the date of such prepayment (a “Term Prepayment Date”)on the amount prepaid. Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation prepayment of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(ewith this Section 2.12(c) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower applied first to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the next four installments of each such Class of Term Loans in direct order of maturity and then to prepay all remaining installments thereof pro rata against all such scheduled installments based upon the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders)respective amounts thereof.
Appears in 1 contract
Samples: Credit Agreement (Cars.com Inc.)
Mandatory Prepayments of Term Loans. (a) Prior to Upon the Tranche A Term Loan Repayment Dateconsummation of any Asset Sale by Holdings, except as set forth in the immediately succeeding sentence with respect to Borrower or any Subsidiary of Borrower (other than the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of Inventory and Equipment Sales and the Alliance Sale) the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment Datewhich are greater than $500,000, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after Holdings', the day Borrower's or any of its Subsidiaries' (i) receipt by a Group Member of the any Net Cash Proceeds from any such Asset Sale, or (ii) conversion to cash or Cash Equivalents of non-cash proceeds (whether principal or interest and including securities, release of escrow arrangements or lease payments) received from any Asset Sale Sale, the Borrower shall make or Recovery Event that results from the sale or other disposition of, or payment with respect to, any cause to be made a mandatory prepayment of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), Obligations in an amount equal to (y) one hundred percent (100% %) of such Net Cash Proceeds or such proceeds converted from non-cash to cash or Cash Equivalents in the case of Asset Sales other than in connection with the issuance of Capital Stock and (z) seventy-five percent (75%) of such Net Cash Proceeds or such proceeds converted from non-cash to cash or Cash Equivalents in the case of Asset Sales consisting of the issuance of Capital Stock. .
(b) Within two (2) Business Days after receipt by the Borrower or any of its Subsidiaries of any proceeds of Indebtedness permitted by Section 6.3(A)(ii)(c), the Borrower shall make or cause to be made a mandatory prepayment in an amount equal to one-hundred percent (100%) of such proceeds of Indebtedness.
(c) Simultaneously with the delivery of the annual audited financial statements required to be delivered pursuant to Section 6.1(a)(iii) for each Cash Flow Period, the Borrower shall calculate Excess Cash Flow for such Cash Flow Period and shall make a mandatory prepayment, payable no later than ten (10) days after such calculation and financial statements are delivered in an amount equal to fifty percent (50%) of such Excess Cash Flow, provided that such mandatory prepayment shall not be required if the Borrower's Leverage Ratio (as defined in Section 6.4(D)) as of the last day of such Cash Flow Period is less than 4.00 to 1.00.
(d) Nothing in this Section 2.5(B)(i) shall be construed to constitute the Lenders' consent to any transaction referred to in clause (a) or (b) above which is not expressly permitted by the terms of this Agreement.
(e) Each mandatory prepayment required by clauses (a), (b) and (c) of this Section 2.5(B)(i) shall be referred to herein as a "DESIGNATED PREPAYMENT". Designated Prepayments shall be allocated and applied to the Obligations as follows:
(I) the amount of each Designated Prepayment shall be applied to the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, 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 of the applicable Class as set forth in Section 2.16(e).
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment unpaid installments of the Term Loans in the inverse order of such Class maturity; and
(including II) following the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth payment in Section 2.09(a). The application of any prepayment full of the Term Loans pursuant to this Section 2.16 Loans, the amount of each Designated Prepayment shall be madeapplied to repay Revolving Loans (but shall reduce Revolving Loan Commitments only at the option of the Required Lenders) and following the payment in full of the Revolving Loans, firstthe amount of each Designated Prepayment shall be applied first to interest on the Reimbursement Obligations, then to principal on the Reimbursement Obligations, then to fees on account of Letters of Credit and then, to ABR Loans (until all ABR Loans the extent any L/C Obligations are paid contingent, deposited with the Agent as cash collateral in full) and, second, to Eurodollar Loansrespect of such L/C Obligations.
(f) The On the date any Designated Prepayment is received by the Agent, such prepayment shall be applied (unless the Borrower shall notify the Administrative Agent have designated an alternative application in writing which alternative application shall be subject to payment of any mandatory prepayment of Term Loans all amounts required to be made pursuant to clauses (aSection 3.4) through (d) of this Section 2.16 (the aggregate amount of first to Floating Rate Loans and to any Eurodollar Loans maturing on such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amountdate. The Administrative Agent will promptly notify each Term Loan Lender of shall hold the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the remaining portion of such prepayment which otherwise would have been allocated Designated Prepayment as cash collateral in an interest bearing deposit account and shall apply funds from such account to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term subsequently maturing Eurodollar Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion order of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders)maturity.
Appears in 1 contract
Samples: Credit Agreement (SCP Pool Corp)
Mandatory Prepayments of Term Loans. (a) Prior to the Tranche A Term Loan Repayment Date, except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, The Borrower shall apply an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.026.02 (other than clause (i) shall be applied of Section 6.02(aa)) to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment Date, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered Subject to the Administrative Agent within three Section 2.16(f), not later than ten (310) Business Days after following the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), an amount equal to 100% of such Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member); provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant ; provided further that no payment under this Section shall be required to the immediately preceding sentence, on extent the Borrower uses all or a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to make a Permitted Net Cash Proceeds Reinvestment. 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 of the applicable Class as set forth in Section 2.16(e).
(c) Commencing with the fiscal year of the Borrower ending December 31, 20082014, and ending with an amount equal to (i) the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount ECF Prepayment Percentage of the Adjusted Excess Cash Flow for any each fiscal year of the Borrower minus (ii) the aggregate principal amount of all Term Loans voluntarily prepaid by the Borrower pursuant to Section 2.17 during such fiscal year (the “Applicable ECF Amount”) shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date; provided that so long as (i) no Default or Event of Default shall then exist or would arise therefrom and (ii) the Total Net Secured Leverage Ratio as of the last day of such fiscal year is not greater than 4.25:1.00, up to 50% of such Excess Cash Flow that would have been required to be applied to prepay the Term Loans shall not be required to be so applied on the Prepayment Application Date to the extent that on or prior to such Prepayment Application Date, the Borrower shall have delivered an officer’s certificate of a Financial Officer to the Term Administrative Agents stating that the Borrower and/or its Restricted Subsidiaries reasonably intend to reinvest such amount of Excess Cash Flow (without duplication to any amounts specified for such Excess Cash Flow Period pursuant to clause (b)(x) of the definition of Excess Cash Flow), within 12 months following the last day of the most recently ended fiscal year, in Capital Expenditures permitted hereunder or Investments permitted to be made under Section 6.08 in Restricted Subsidiaries for purposes of the making of Capital Expenditures (which officer’s certificate shall set forth in reasonable detail the estimates of the Excess Cash Flow intended to be reinvested).
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date[Reserved].
(e) Any amount of Net Cash Proceeds, any Applicable ECF Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance Flow or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated (i) ratably to each Class of Term Loan and (ii) ratably among the Term Loan Lenders of the applicable each such Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either a Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth ), except to the extent that any applicable amendment in connection with a refinancing pursuant to Section 2.09(a)2.31 or, to the extent permitted under Section 2.32, any Incremental Assumption Agreement for any Class of Term Loans provides that the Term Loans made pursuant thereto shall be entitled to less than pro rata treatment; provided, that any prepayment of Term Loans required as a result of the incurrence of Indebtedness incurred pursuant to Section 2.31 shall be applied solely to each applicable Class or tranche of Refinanced Debt. The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Term Administrative Agent Agents (with a copy to the Revolving Administrative Agent) in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Term Administrative Agent Agents will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated for each Class of Term Loans by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstandingoutstanding in such Class) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders).
Appears in 1 contract
Samples: Term Loan and Revolving Credit Agreement (Federal-Mogul Holdings Corp)
Mandatory Prepayments of Term Loans. (a) Prior Upon the consummation of any Asset Sale by the Company or any Subsidiary of the Company, other than those Asset Sales permitted pursuant to Section 6.9(i), (iii), (iv), (v), (vi) and (ix), --------------------- ---- --- ---- ---- except to the Tranche A Term Loan Repayment Date, except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of extent that the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment DateAsset Sale, an amount equal to 100% of when combined with the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) all such Asset Sales during the immediately preceding twelve-month period, do not exceed $1,000,000 or the Approximate Equivalent Amount of any Loan Party shall be applied to Agreed Currency other than Dollars, and except as provided in the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end second sentence of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be2.5.3(B)(i)(a), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day ---------------------- Company's or any of its Subsidiaries' (i) receipt by a Group Member of the any Net Cash Proceeds from any such Asset Sale, or (ii) conversion to cash or Cash Equivalents of non-cash proceeds (whether principal or interest and including securities, release of escrow arrangements or lease payments) received from any Asset Sale or Recovery Event that results from Sale, the sale or other disposition ofCompany shall, or payment with respect shall cause the other Borrowers to, any make a mandatory prepayment of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), Obligations in an amount equal to one hundred percent (100% %) of such Net Cash Proceeds shall be applied or such proceeds converted from non-cash to the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt of any such cash or Cash Equivalents. Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount Asset Sales with respect to which the relevant Reinvestment Event Company shall have given the Agent written notice of its intention to replace the assets within twelve (12) months, following such Asset Sale shall not be applied subject to the prepayment provisions of the Term Loans first sentence of this Section 2.5.3(B)(i)(a) unless and to the extent that ---------------------- such applicable Class as set forth in Section 2.16(e)period shall have expired without such replacement having been made.
(ci) Commencing with Except as provided in clause (b)(ii) below, upon -------------- the fiscal year consummation of any Financing by the Company or any Subsidiary of the Borrower ending December 31Company, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than within three (3) Business Days prior to after the applicable Term Prepayment DateCompany's or any of its Subsidiaries' receipt of any Net Cash Proceeds from such Financing, the Company shall, or shall cause the other Borrowers to, make a written notice that any mandatory prepayment otherwise of the Obligations in an amount equal to one hundred percent (100%) of such Net Cash Proceeds.
(ii) Notwithstanding the foregoing, Net Cash Proceeds subject to clause (i) above shall not include Net Cash Proceeds ---------- received in connection with the issuance of any Capital Stock, other than Disqualified Stock, to any employee, executive, director or officer and if the Company or any Subsidiary of the Company issues Equity Interests of such Person or any Permitted Refinancing Indebtedness of such Person, the proceeds of any such offering of Equity Interests or Indebtedness may be used to refinance the Seller Senior Subordinated Note or the Additional Junior Security.
(c) Simultaneously with the delivery of the annual audited financial statements required to be made with respect to the Term Loans held by such Term Loan Lender delivered pursuant to clauses Section -------
6.1(i) for each fiscal year beginning with the fiscal year ending ------ November 30, 1999, the Company shall calculate Excess Cash Flow for such fiscal year and shall, or shall cause the other Borrowers to, make a mandatory prepayment of the Obligations, payable not later than the earlier of ten (a10) through days after such financial statements and calculation are delivered or one hundred (d100) of this Section 2.16 not be made, in which event days after the portion end of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Classfiscal year, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders).to:
Appears in 1 contract
Samples: Credit Agreement (Tokheim Corp)
Mandatory Prepayments of Term Loans. (a) Prior Upon the consummation of any Asset Sale by the Borrower or any Subsidiary of the Borrower or the receipt by the Borrower or any Subsidiary of proceeds from any condemnation proceeding or from insurance in connection with any loss, except to the Tranche A Term Loan Repayment Date, except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of extent that the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment DateAsset Sale or other such proceeds, an amount equal to 100% of when combined with the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) all such Asset Sales or other such proceeds during the immediately preceding twelve-month period, do not exceed $1,000,000 or the Approximate Equivalent amount of any Loan Party shall be applied to Agreed Currency other than Dollars, and except as provided in the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end second sentence of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be2.5(B)(i)(a), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day Borrower's or any of its Subsidiaries' (i) receipt by a Group Member of the any Net Cash Proceeds of from any such Asset Sale or Recovery Event that results from the sale or other disposition ofsuch proceeds, or payment with respect to(ii) conversion to cash or Cash Equivalents of non-cash proceeds (whether principal or interest and including securities, release of escrow arrangements or lease payments) received from any Asset Sale, the Borrower shall make a mandatory prepayment of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), Obligations in an amount equal to one hundred percent (100% %) of such Net Cash Proceeds shall be applied or other such proceeds or such proceeds converted from non-cash to the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt of any such cash or Cash Equivalents. Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount Asset Sales with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Term Loans of the applicable Class as set forth in Section 2.16(e).
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to have given the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is within thirty (30) Business Days after such Asset Sale of its intention to replace the assets within six (6) months following such Asset Sale shall not be subject to the provisions of the first sentence of this Section 2.5(B)(i)(a) unless and to the extent that such applicable Term Prepayment Dateperiod shall have expired without such replacement having been made.
(i) Except as provided in clause (b)(ii) below, on upon the Cut-off Date consummation of any Financing (other than those Financings permitted pursuant to Sections 7.3(A)(i) through (xii)) by the Borrower or any Subsidiary of the Borrower, within three (3) Business Days after the Borrower's or any of its Subsidiaries' receipt of any Net Cash Proceeds from such Financing, the Borrower shall prepay make a mandatory prepayment of the Obligations in an amount equal to one hundred percent (100%) of such Net Cash Proceeds.
(ii) Notwithstanding the foregoing, Net Cash Proceeds subject to clause (i) above shall not include Net Cash Proceeds received in connection with the issuance (i) of any Capital Stock of the Borrower, or any Subsidiary of Borrower, other than Disqualified Stock, to any employee, executive, director or officer or (ii) of any Capital Stock of the Borrower or any Subsidiary of the Borrower, or any Permitted Refinancing Indebtedness (including of the Permitted Subordinated Indebtedness) of the Borrower, or any Subsidiary of the Borrower to the extent that the proceeds and uses of any such offering of Equity Interests or Indebtedness shall be used to refinance the Permitted Subordinated Indebtedness.
(c) Nothing in this Section 2.5(B)(i) shall be construed to constitute the Lenders' consent to any transaction referred to in clause (a) or (b) above which is not expressly permitted by the terms of this Agreement.
(d) Each mandatory prepayment required by clauses (a), and (b) of this Section 2.5(B) shall be referred to herein as a "DESIGNATED PREPAYMENT." Designated Prepayments shall be allocated and applied to the Obligations as follows:
(I) the amount of each Designated Prepayment shall be applied ratably to the Term Loans to each of the Declining Lenders then remaining installments payable under such Term Loans in the inverse order of maturity; and
(II) following the payment in full of the applicable ClassTerm Loans, in an aggregate principal the amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders each Designated Prepayment shall be required pursuant applied to this sentence prior repay Revolving Loans (but shall reduce Revolving Loan Commitments only at the option of the Borrower) and following the payment in full of the Revolving Loans, the amount of each Designated Prepayment shall be applied first to interest on the Reimbursement Obligations, then to principal on the Reimbursement Obligations, then to fees on account of Letters of Credit and then, to the Tranche B Repayment Date). Any extent any L/C Obligations are contingent, deposited with the Agent as cash collateral in respect of such L/C Obligations.
(e) On the date any Designated Prepayment is received by the Agent, such prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant applied first to Section 9.10, Floating Rate Loans and to any modification, amendment or waiver Eurocurrency Rate Loans maturing on such date and then to subsequently maturing Eurocurrency Rate Loans in order of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders)maturity.
Appears in 1 contract
Samples: Credit Agreement (Schawk Inc)
Mandatory Prepayments of Term Loans. Subject to the provisions of Section 2.2.4 (Indemnity), the Borrower shall make the following mandatory prepayments (each a "Term Loan Mandatory Prepayment" and collectively the "Term Loan Mandatory Prepayments") of the Term Loans to the Agent for the ratable benefit of the Lenders:
(a) Prior Following payment of the BofA Obligations in full, the Borrower shall make Term Loan Mandatory Prepayments of the Term Loans to the Tranche A Agent for the ratable benefit of the Lenders annually. Each Term Loan Repayment Mandatory Prepayment shall be in the amount of the Excess Cash Flow for the then preceding fiscal year and shall be payable on the date the Borrower shall furnish to the Agent the annual financial statements referred to in Section 6.1.1 (Financial Statements). If, however, the Borrower fails to furnish such financial statements in any given year as and when required, the Borrower shall be required to pay the Term Loan Mandatory Prepayment payable during such calendar year on the date which is ninety (90) days after the close of the Borrower's then preceding fiscal year.
(b) To the extent the Net Proceeds of any Asset Disposition (excluding any Asset Disposition by Xxxxx UK or NIM Holdings) (including the sale and issuance of any Securities) by the Borrower or any Subsidiary Guarantor cause the aggregate of all such Asset Dispositions in any fiscal year to exceed Five Hundred Thousand Dollars ($500,000), all of such excess, if any, remaining after payment of the BofA Obligations in full, shall be paid to the Agent as a Term Loan Mandatory Prepayment. Notwithstanding the foregoing, the Borrower shall not be required to make a Term Loan Mandatory Prepayment in connection with
(i) any public, private or Rule 144(A) offering of Securities which does not generate any proceeds (other than nominal proceeds), including, for example, the issuance or exercise of warrants with registration rights or the issuance of a resale prospectus for any existing shares of capital stock;
(ii) any non-cash Net Proceeds which are Indebtedness for Borrowed Money received by the Borrower or any Subsidiary Guarantor in payment of the purchase price of an Asset which is the subject of a Permitted Asset Disposition; provided that, upon the Collateral Agent's demand, the Borrower and/or the Subsidiary Guarantor, as the case may, on or before the BofA Termination Date, except shall take all such actions as set forth shall be reasonably requested by the Collateral Agent to grant to the Collateral Agent for the benefit of the BofA Agent and the ratable benefit of the BofA Lenders a first priority perfected Lien on any such Indebtedness for Borrowed Money and to grant to the Collateral Agent for the benefit of the Agent and the ratable benefit of the Lenders a second priority perfected Lien and at any time after the BofA Termination Date, shall take all such actions as shall be reasonably required by the Collateral Agent to grant to the Collateral Agent for the benefit of the Agent and the ratable benefit of the Lenders, a first priority perfected Lien on any such Indebtedness for Borrowed Money; provided further that the principal amount of all such Indebtedness for Borrowed Money shall not exceed at any time in the immediately succeeding sentence with respect aggregate Five Hundred Thousand Dollars ($500,000);
(iii) the issuance and sale of the Preferred Stock; and
(iv) the sale of the property which is subject to the incurrence Lien of the Deed of Trust - Arlington Heights and/or the sale of a portion of the property which is subject to the Lien of the Deed of Trust - Evansville; provided that such sale or sales constitute a Permitted Subordinated IndebtednessAsset Disposition.
(c) Immediately upon closing and consummation of any public or private offering of Indebtedness for Borrowed Money by the Borrower or any Subsidiary Guarantor on or after the Closing Date, the Borrower shall make a Term Loan Mandatory Prepayment in an amount equal to the balance, if any, of one hundred percent (100% %) of the Net Cash Proceeds of such public or private offering remaining after payment of the BofA Obligations in full; provided that a Term Loan Mandatory Prepayment shall not be required with respect to:
(i) Indebtedness for Borrowed Money permitted by Section 6.2.4 (Indebtedness), other than subsection (d) of Section 6.2.4; and
(ii) the issuance of any incurrence Indebtedness by the Borrower or any Subsidiary Guarantor, if (A) such Indebtedness is issued pursuant to and is permitted by subsection (d) of Section 6.2.4 and such Indebtedness constitutes a "Refinancing Indebtedness" as defined in subsection (m) of Section 6.2.4 or (B) if the Net Proceeds of such Indebtedness are used, in whole, to finance a Permitted Acquisition or Capital Expenditures as and to the extent permitted by the provisions of this Agreement; and (C) the aggregate amount of Indebtedness under clauses (i) and (ii) of any this subsection (b) does not exceed Twenty Million Dollars ($20,000,000). The Borrower shall pay to the Agent on the date of each required Term Loan Party (excluding any Indebtedness permitted Mandatory Prepayment accrued interest to be incurred under Section 6.02) such date on the amount prepaid. Each partial Term Loan Mandatory Prepayment shall be applied to the prepayment unpaid principal balance of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment Date, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), an amount equal to 100% of such Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, 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 of the applicable Class as set forth in Section 2.16(e).
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders).
Appears in 1 contract
Mandatory Prepayments of Term Loans. (a) Prior to Upon the Tranche A Term Loan Repayment Dateconsummation of any Asset Sale by Holdings, except as set forth the Borrower or any Subsidiary of Borrower (other than the Permitted Inventory and Equipment Sales and the sale of the Borrower's real property located in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated IndebtednessFresno County, an amount equal to 100% of California) the Net Cash Proceeds of any incurrence which are greater than $500,000, within (A) one hundred eighty (180) days in the case of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02an Asset Sale described in clause(y) shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment Datebelow, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (iiB) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days in the case of an Asset Sale described in clause (z) below, after Holdings', the day Borrower's or any of its Subsidiaries' (i) receipt by a Group Member of the any Net Cash Proceeds from any such Asset Sale, or (ii) conversion to cash or Cash Equivalents of non-cash proceeds (whether principal or interest and including securities, release of escrow arrangements or lease payments) received from any Asset Sale, the Borrower shall make or cause to be made a mandatory prepayment of the Obligations in an amount equal to (y) one hundred percent (100%) of such Net Cash Proceeds or such proceeds converted from non-cash to cash or Cash Equivalents in the case of Asset Sales other than in connection with the issuance of Capital Stock; provided, however, that such Net Cash Proceeds which Holdings, the Borrower or such Subsidiary shall, within one hundred eighty (180) days after the receipt thereof, use to acquire assets of a like nature to those sold in such Asset Sale in replacement thereof shall not be required to be prepaid pursuant to the terms of this Section 2.5(B)(i)(a), provided, further, however, that notwithstanding the foregoing, during the existence of a Default under Section 7.1(a), if Holdings, the Borrower or any Subsidiary shall consummate any Asset Sale or Recovery Event that results from in which the sale price exceeds $50,000, then the Borrower shall, immediately upon receipt, make or other disposition of, or payment with respect to, any of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), cause to be made a mandatory prepayment in an amount equal to 100% of such Net Cash Proceeds and (z) seventy-five percent (75%) of such Net Cash Proceeds or such proceeds converted from non-cash to cash or Cash Equivalents in the case of Asset Sales consisting of the issuance of Capital Stock.
(b) Within two (2) Business Days after receipt by the Borrower or any of its Subsidiaries of any proceeds of Indebtedness permitted by Section 6.3(A)(ii)(c), the Borrower shall make or cause to be made a mandatory prepayment in an amount equal to one-hundred percent (100%) of such proceeds of Indebtedness.
(c) Simultaneously with the delivery of the annual audited financial statements required to be delivered pursuant to Section 6.1(a)(iii) for each Cash Flow Period, the Borrower shall calculate Excess Cash Flow for such Cash Flow Period and shall make a mandatory prepayment, payable no later than ten (10) days after such calculation and financial statements are delivered in an amount equal to fifty percent (50%) of such Excess Cash Flow, provided that such mandatory prepayment shall not be required if the Borrower's Leverage Ratio (as defined in Section 6.4(D)) as of the last day of such Cash Flow Period is less than 4.00 to 1.00.
(d) Nothing in this Section 2.5(B)(i) shall be construed to constitute the Lenders' consent to any transaction referred to in clause (a) or (b) above which is not expressly permitted by the terms of this Agreement.
(e) Each mandatory prepayment required by clauses (a), (b) and (c) of this Section 2.5(B)(i) shall be referred to herein as a "Designated Prepayment". Designated Prepayments shall be allocated and applied to the Obligations as follows:
(I) the amount of each Designated Prepayment required by (A) clauses (a)(y), (b) and (c) of this Section 2.5(B)(i) shall be applied to the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, 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 of the applicable Class as set forth in Section 2.16(e).
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment unpaid installments of the Term Loans in the inverse order of such Class maturity, and (including B) clause (a)(z) of this Section 2.5(B)(i) shall be applied pro rata and ratably to the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment unpaid installments of the Term Loans pursuant to this Section 2.16 Loans; and
(II) following the payment in full of the Term Loans, the amount of each Designated Prepayment shall be madeapplied to repay Revolving Loans and following the payment in full of the Revolving Loans, firstthe amount of each Designated Prepayment shall be applied first to interest on the Reimbursement Obligations, then to principal on the Reimbursement Obligations, then to fees on account of Letters of Credit and then, to ABR Loans (until all ABR Loans the extent any L/C Obligations are paid contingent, deposited with the Agent as cash collateral in full) and, second, to Eurodollar Loansrespect of such L/C Obligations.
(f) The On the date any Designated Prepayment is received by the Agent, such prepayment shall be applied (unless the Borrower shall notify the Administrative Agent have designated an alternative application in writing which alternative application shall be subject to payment of any mandatory prepayment of Term Loans all amounts required to be made pursuant to clauses (aSection 3.4) through (d) of this Section 2.16 (the aggregate amount of first to Floating Rate Loans and to any Eurodollar Loans maturing on such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amountdate. The Administrative Agent will promptly notify each Term Loan Lender of shall hold the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the remaining portion of such prepayment which otherwise would have been allocated Designated Prepayment as cash collateral in an interest bearing deposit account and shall apply funds from such account to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term subsequently maturing Eurodollar Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion order of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders)maturity.
Appears in 1 contract
Samples: Credit Agreement (SCP Pool Corp)
Mandatory Prepayments of Term Loans. (ai) Prior On or prior to the Tranche A earlier of (A) the fifth (5th) day after the delivery of annual financial statements for a fiscal year in accordance with Section 5.01(a) or (B) the ninety-fifth (95th) day of each fiscal year, commencing with the fiscal year ending December 31, 2019, the Borrower shall prepay the Loans in an amount equal to (x) fifty percent (50%) of Excess Cash Flow (if any) for such fiscal year less (y) all voluntary prepayments of Term Loan Repayment DateLoans (not made in lieu of mandatory prepayments) made during such fiscal year pursuant to Section 2.25 and all repayments and prepayments of the loans under the Revolving Credit Agreement made during such fiscal year to the extent accompanied by a corresponding permanent reduction in commitments under the Revolving Credit Agreement, except to be applied as set forth in the immediately succeeding sentence Section 2.26(b); provided, that if, with respect to any fiscal year in which a mandatory prepayment pursuant to this Section 2.26(a)(i) is otherwise due, the incurrence Total Net Leverage Ratio as of Permitted Subordinated Indebtednessthe end of such fiscal year is less than (A) 3.50:1.00, then the Borrower shall prepay the Loans in an amount equal to 100% (x) twenty-five percent (25%) of Excess Cash Flow (if any) for such fiscal year less (y) all voluntary prepayments of Term Loans (not made in lieu of mandatory prepayments) made during such fiscal year pursuant to Section 2.25 and all repayments and prepayments of the loans under the Revolving Credit Agreement made during such fiscal year to the extent accompanied by a corresponding permanent reduction in commitments under the Revolving Credit Agreement, to be applied as set forth in Section 2.26(b) or (B) 2.50:1.00, then the Borrower shall prepay the Loans in an amount equal to zero (0%) of Excess Cash Flow (if any) for such fiscal year.
(ii) Concurrently with the incurrence of any Indebtedness by any Loan Party or any of its Subsidiaries (other than Indebtedness permitted under Section 6.01), the Borrower shall prepay the Loans in an amount equal to the Prepayment Price multiplied by the amount of such Net Cash Proceeds Debt Proceeds, to be applied as set forth in Section 2.26(b). Nothing in this Section 2.26(a)(ii) shall be construed to permit or waive any Default or Event of Default arising from any incurrence of Indebtedness not permitted under the terms of this Agreement.
(iii) Concurrently with the receipt by any Loan Party or any of its Subsidiaries of any proceeds from any Disposition (excluding other than any Indebtedness Disposition permitted under Section 6.05(a)) in excess of $2,500,000 in any fiscal year (individually or in the aggregate over the course of a fiscal year), the Borrower shall prepay the Loans in an amount equal to the Prepayment Price multiplied by the amount of such Net Disposition Proceeds from such Disposition, to be incurred under applied as set forth in Section 6.022.26(b); provided, that the Borrower may, at its option by notice in writing to the Administrative Agent on or prior to the Disposition giving rise to such Net Disposition Proceeds, within three hundred sixty-five (365) days after such event (or enters into a binding commitment thereof within said three hundred sixty-five (365) day period and subsequently makes such reinvestment within an additional one hundred eighty (180) days thereafter), reinvest such Net Disposition Proceeds in assets to be used in the business of the Borrower so long as no Default or Event of Default shall have occurred and be continuing, in each case as certified by the Borrower in writing to the Administrative Agent. Nothing in this Section 2.26(a)(iii) shall be construed to permit or waive any Default or Event of Default arising from any Disposition not permitted under the terms of this Agreement.
(iv) Concurrently with the receipt by any Loan Party or any of its Subsidiaries of any proceeds from any Casualty Event, the Borrower shall prepay the Loans in an amount equal to the Prepayment Price multiplied by the amount of such Net Casualty Proceeds, to be applied as set forth in Section 2.26(b); provided, that so long as no Event of Default shall have occurred and be continuing, the Borrower may, at its option by notice in writing to the Administrative Agent no later than thirty (30) days following the occurrence of the Casualty Event resulting in such Net Casualty Proceeds), apply such Net Casualty Proceeds to the rebuilding or replacement of such damaged, destroyed or condemned assets or property so long as such Net Casualty Proceeds are in fact used to rebuild or replace the damaged, destroyed or condemned assets or property within three hundred sixty-five (365) days following the receipt of such Net Casualty Proceeds (or enters into a binding commitment thereof within said three hundred sixty-five (365) day period and subsequently makes such reinvestment within an additional one hundred eighty (180) days thereafter), with the amount of Net Casualty Proceeds unused after such period to be applied as set forth in Section 2.26(b); provided, further, that at any time when any Default or Event of Default shall have occurred and be continuing, such Net Casualty Proceeds shall be deposited in an account maintained with the Administrative Agent for, at the Administrative Agent’s discretion (acting upon instructions from the Required Lenders), prepayment of the Loans or disbursement at the request of the Borrower to pay for such rebuilding or replacement. Nothing in this Section 2.26(a)(iv) shall be construed to permit or waive any Default or Event of Default arising from, directly or indirectly, any Casualty Event.
(v) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to Section 2.26 shall be applied, first, to the prepayment of the Tranche B Second Amendment Incremental Term Loans as set forth in Section 2.16(e2.26(c) until Paid in Full, second, to accrued and unpaid interest on the date of such incurrence. Prior to the Tranche A Second Amendment Incremental Term Loan Repayment DateLoans until Paid in Full, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied third, to the prepayment of the Tranche B Initial Term Loans as set forth in Section 2.16(e2.26(c) until Paid in Full, fourth, to accrued and unpaid interest on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital ExpenditureInitial Term Loans until Paid in Full, (v) a Restricted Paymentand, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09fifth, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral (including without limitation the PP&E Collateral, but excluding Accounts that are Collateral or Inventory that is Collateral), an amount equal to 100% of such Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, 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 of the applicable Class as set forth in Section 2.16(e).
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably outstanding Obligations until Paid in accordance with their respective Term Loans of such ClassFull. Each prepayment of Term the Loans of either Class made pursuant to this under Section 2.16 2.26 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior accompanied by accrued interest to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders)prepaid.
Appears in 1 contract
Samples: Second Lien Credit Agreement (RTI Surgical Holdings, Inc.)
Mandatory Prepayments of Term Loans. (a) Prior to Upon the Tranche A Term Loan Repayment Date, except as set forth in consummation of any Asset Sale or any Financing by the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% Borrower or any Subsidiary of the Net Cash Proceeds Borrower (other than in connection with consummation of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.02) shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the date of such incurrence. Prior to the Tranche A Term Loan Repayment Date, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness (including Permitted Designated Subordinated Indebtedness) of any Loan Party shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the 121st day (the “Payment Date”) after the date of such incurrence "Excluded Transaction" (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are (i) not from the issuance of Permitted Designated Subordinated Indebtedness and (ii) not used prior to such 121st day to make (u) a Capital Expenditure, (v) a Restricted Payment, (w) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may bedefined below)), (x) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (y) Permitted Open Market Purchases or (z) a repayment of the Tranche A Term Loans; provided that if on such 121st day a Board-Approved Investment, a Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Tranche B Term Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.09, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day Borrower's or any of its Subsidiaries' (i) receipt by a Group Member of the any Net Cash Proceeds of from any such Asset Sale or Recovery Event that results from the sale or other disposition ofFinancing, or payment (ii) conversion to cash or Cash Equivalents of non-cash proceeds (whether principal or interest and including securities, release of escrow arrangements or lease payments) received from any such Asset Sale or Financing, the Borrower shall make a mandatory prepayment of the Obligations in an amount equal to one hundred percent (100%) of such Net Cash Proceeds or such proceeds converted from non-cash to cash or Cash Equivalents. Proceeds of Asset Sales with respect to, any to which the Borrower shall have given the Administrative Agent written notice prior to the consummation of the Collateral Asset Sale of the Borrower's or the applicable Subsidiary's intention to replace the asset sold with like-kind assets purchased with such Net Cash Proceeds, and in connection with which the Borrower or the applicable Subsidiary shall have replaced such assets within six (including 6) months, in the case of a sale of equipment, or commenced such replacement within twelve (12) months after such Asset Sale and shall have completed such reinvestment within twenty-four (24) months after such Asset Sale, in the case of sale of real property, shall not be subject to the provisions of the first sentence of this SECTION 2.4(B)(I)(A) unless and to the extent that such applicable period shall have expired without limitation such replacement having been made; PROVIDED, that upon the PP&E Collateraloccurrence of any Default, but excluding Accounts that are Collateral or Inventory that is Collateral), such portion of such Net Cash Proceeds as has not been invested in replacement assets shall be paid to the Administrative Agent to be applied as a mandatory prepayment of the Obligations in an amount equal to 100% of such Net Cash Proceeds shall be applied or such proceeds converted from non-cash to the prepayment of the Tranche B Term Loans (or, if the Tranche B Repayment Date has occurred, the Tranche C Term Loans) as set forth in Section 2.16(e) within ten (10) Business Days after the day of receipt of any such Net cash or Cash Proceeds by any Group Member; provided that no prepayment of the Term Loans of either Class shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, 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 of the applicable Class as set forth in Section 2.16(e)Equivalents.
(c) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(d) Commencing with the fiscal year of the Borrower ending December 31, 2008, and ending with the fiscal year preceding the fiscal year in which the Tranche A Term Loan Repayment Date occurs, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Tranche B Term Loans as set forth in Section 2.16(e) on the Prepayment Application Date.
(e) Any amount of Net Cash Proceeds, any Applicable Amount of the Adjusted Excess Cash Flow, any Applicable Amount of the Adjusted Positive EBITDA Variance or any other amount required to be applied to the prepayment of the Term Loans of either Class pursuant to this Section 2.16 shall be allocated ratably among the Term Loan Lenders of the applicable Class ratably in accordance with their respective Term Loans of such Class. Each prepayment of Term Loans of either Class made pursuant to this Section 2.16 shall be applied to reduce ratably the then remaining principal repayment installments of the Term Loans of such Class (including the final installment of such Term Loans due on the Tranche B Maturity Date or the Tranche C Maturity Date, as applicable) set forth in Section 2.09(a). The application of any prepayment of the Term Loans pursuant to this Section 2.16 shall be made, first, to ABR Loans (until all ABR Loans are paid in full) and, second, to Eurodollar Loans.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) through (d) of this Section 2.16 (the aggregate amount of such prepayment to be made in any single instance, a “Term Payment Amount”) at least five (5) Business Days prior to the date of such prepayment (a “Term Prepayment Date”). Each such notice shall specify the applicable Term Prepayment Date and provide a reasonably detailed calculation of the applicable Term Payment Amount. The Administrative Agent will promptly notify each Term Loan Lender of the applicable Class of the contents of the Borrower’s prepayment notice and of such Term Loan Lender’s ratable share (such ratable share to be calculated by dividing such Term Loan Lender’s Term Loans of the applicable Class by the total Term Loans of the applicable Class then outstanding) of the Term Payment Amount. Any Term Loan Lender of the applicable Class (a “Declining Lender”) may elect, by delivering, not less than three (3) Business Days prior to the applicable Term Prepayment Date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to clauses (a) through (d) of this Section 2.16 not be made, in which event the portion of such prepayment which otherwise would have been allocated to such Declining Lenders (i) in the case of a prepayment of Tranche B Term Loans required to be made pursuant to clause (b) of this Section 2.16, shall instead be applied to prepay Tranche C Term Loans in accordance Sections 2.16(e) and 2.16(f) or (ii) in all other cases, shall instead be retained by the Borrower (the “Retained Amount”). To the extent that any portion of the Retained Amount shall not have been used by the Borrower to repay any of its other Indebtedness by the date (the “Cut-off Date”) that is thirty (30) Business Days after the applicable Term Prepayment Date, on the Cut-off Date the Borrower shall prepay the Term Loans of the Declining Lenders of the applicable Class, in an aggregate principal amount equal to such unused portion (it being understood that no prepayment of Tranche C Term Loans of Declining Lenders shall be required pursuant to this sentence prior to the Tranche B Repayment Date). Any prepayment of Tranche C Term Loans required to be made pursuant to the preceding sentence (but not any other prepayment pursuant to this Section 2.16) prior to the Non-Call Expiration Date shall be accompanied by the Applicable Premium. It is understood that, pursuant to Section 9.10, any modification, amendment or waiver of this clause (f) shall require the consent of the Required Lenders (and shall not require the consent of any other group or number of Lenders).
Appears in 1 contract
