Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof. (b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document. (c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements. (d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof. (e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof. (f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 4 contracts
Samples: Revolving Credit, Term Loan, Guaranty and Security Agreement (Dril-Quip Inc), Revolving Credit, Term Loan, Guaranty and Security Agreement (Dril-Quip Inc), Revolving Credit, Term Loan, Guaranty and Security Agreement (Innovex Downhole Solutions, Inc.)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes In the event of any Collateral resulting in Net Disposition Proceeds in excess termination of $500,000 in all the aggregate in any fiscal yearRevolving Credit Commitments, other than Inventory in the Ordinary Course Borrower shall, on the date of Business such termination, repay or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in prepay all its outstanding Revolving Credit Borrowings and all outstanding Swingline Loans and replace all outstanding Letters of Credit and/or deposit an amount equal to the Net Disposition Proceeds L/C Exposure in cash in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties. In the event of any partial reduction of the Revolving Credit Commitments, then (i) at or prior to the effective date of such salereduction, the Administrative Agent shall notify the Borrower and the Revolving Credit Lenders of the Aggregate Revolving Credit Exposure after giving effect thereto and (ii) if the Aggregate Revolving Credit Exposure would exceed the Total Revolving Credit Commitment after giving effect to such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceedsreduction or termination, and until then the Borrower shall, on the date of paymentsuch reduction or termination, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied repay or prepay Revolving Credit Borrowings or Swingline Loans (xor a combination thereof) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including and/or replace or cash collateralization of all Obligations relating to any collateralize outstanding Letters of Credit in an amount sufficient to eliminate such excess.
(b) Not later than the tenth day following the receipt of any Net Cash Proceeds of any Asset Sale, the Borrower shall apply 100% of the Net Cash Proceeds received with respect thereto to prepay outstanding Term Loans in accordance with Section 2.13(f); provided that, if the provisions Borrower shall deliver to the Administrative Agent a certificate of Section 3.2(b)a Financial Officer of the Borrower to the effect that the Borrower and the Subsidiaries intend to apply the Net Cash Proceeds from such Asset Sale (or a portion thereof specified in such certificate) within 330 days after receipt thereof, provided however to acquire real property, equipment or other assets to be used in the business of the Borrower and the Subsidiaries, and certifying that if no Default or Event of Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Cash Proceeds of such repayments Asset Sale (or the portion thereof specified in such certificate, if applicable) except to the extent of any such Net Cash Proceeds that have not been so applied by the end of such 330-day period, at which time a prepayment shall be required in an amount equal to such Net Cash Proceeds that have not been so applied.
(c) In the event and on each occasion that an Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the third Business Day next following) the occurrence of such Equity Issuance, apply 50% of the Net Cash Proceeds therefrom to prepay outstanding Term Loans in accordance with Section 2.13(f).
(d) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending on December 31, 2004) and (ii) the date on which the financial statements with respect to such fiscal year are delivered pursuant to Section 5.04(a), the Borrower shall prepay outstanding Term Loans in accordance with Section 2.13(f) in an aggregate principal amount equal to 50% of Excess Cash Flow for such fiscal year; provided, however, that such prepayment shall not be required if the Senior Leverage Ratio at the end of such fiscal year shall be less than 1.25 to 1.00.
(e) In the event that any Loan Party or any subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other disposition of Indebtedness for money borrowed of any Loan Party or any subsidiary of a Loan Party (including Other Permitted Subordinated Debt, but excluding all other Indebtedness for money borrowed permitted pursuant to Section 6.01), the Borrower shall, substantially simultaneously with (and in any event not later than the first Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay outstanding Term Loans in accordance with Section 2.13(f) (and if, in the case of any issuance or other disposition of Other Permitted Subordinated Debt, there are no Term Loans outstanding after giving effect to any such prepayment, the remaining Net Cash Proceeds thereof, if any, shall be applied to cash collateralize repay outstanding Revolving Loans to the extent thereof); provided that, if the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer of the Borrower to the effect that the Borrower and the Subsidiaries intend to apply the Net Cash Proceeds from the issuance or disposition of any Obligations related to outstanding Letters of Credit last) Other Permitted Subordinated Debt (or a portion thereof specified in such order as Agent may determinecertificate) (x) to finance the cash consideration payable in a Permitted Acquisition to be consummated substantially contemporaneously with the receipt thereof or (y) to fund Capital Expenditures within 365 days after the receipt thereof, and in either case certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Cash Proceeds of such issuance or other disposition of Other Permitted Subordinated Debt (or the portion thereof specified in such certificate, if applicable) except to the extent of any such Net Cash Proceeds that have not been so applied (I) within 15 days, in the case of clause (x) above, or (II) by the end of such 365-day period, in the case of clause (y) above, at which time a prepayment shall be required in an amount equal to such Net Cash Proceeds that have not been so applied.
(f) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Term Loans under Section 2.11(a); provided, however, that any such mandatory prepayment pursuant to Section 2.13(d) shall be applied first, to the scheduled installments due in respect of the Term Loans within the 12 months following such prepayment and then pro rata against the remaining scheduled installments of principal due in respect to the Term Loans.
(g) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.13, (i) a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid, and if such notice relates to a mandatory prepayment pursuant to Section 2.13(d), that fact shall be conspicuously indicated in such notice. All prepayments of Borrowings under this Section 2.13 shall be subject to Borrowers’ ability Section 2.16, but shall otherwise be without premium or penalty.
(h) Amounts to re-borrow be applied pursuant to this Section 2.13 or Section 2.11(a) to the prepayment or repayment of Term Loans and Revolving Advances Loans shall be applied, as applicable, first to reduce outstanding ABR Term Loans and ABR Revolving Loans. Any amounts remaining after each such application shall, at the option of the Borrower, be applied to prepay Eurodollar Term Loans or Eurodollar Revolving Loans, as the case may be, immediately and/or shall be deposited in the Prepayment Account (as defined below). The Administrative Agent shall apply any cash deposited in the Prepayment Account (i) allocable to Term Loans to prepay Eurodollar Term Loans and (ii) allocable to Revolving Loans to prepay Eurodollar Revolving Loans, in each case on the last day of their respective Interest Periods (or, at the direction of the Borrower, on any earlier date) until all outstanding Term Loans or Revolving Loans, as the case may be, have been prepaid or until all the allocable cash on deposit with respect to such Loans has been exhausted. For purposes of this Agreement, the term "Prepayment Account" shall mean an account established by the Borrower with the Administrative Agent and over which the Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal for application in accordance with this paragraph (h). The Administrative Agent will, at the terms hereof.
request of the Borrower, invest amounts on deposit in the Prepayment Account in Cash Equivalents that mature prior to the last day of the applicable Interest Periods of the Eurodollar Term Borrowings or Eurodollar Revolving Borrowings to be prepaid, as the case may be; provided, however, that (bi) Notwithstanding the foregoingAdministrative Agent shall not be required to make any investment that, with respect in its sole judgment, would require or cause the Administrative Agent to be in, or would result in any, violation of any Net Disposition Proceeds which would otherwise give rise law, statute, rule or regulation and (ii) the Administrative Agent shall have no obligation to invest amounts on deposit in the Prepayment Account if a prepayment under Section 2.20(a), so long as no Default or Event of Default shall have occurred and be continuing and continuing. The Borrower shall indemnify the Borrowing Administrative Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds for any losses relating to the investments so that the amount available to prepay Eurodollar Borrowings on the last day of the applicable Loan Party’s Interest Period is not less than the amount that would have been available had no investments been made pursuant thereto. Other than any interest earned on such investments, the Prepayment Account shall not bear interest. Interest or its Subsidiary’s election to reinvest all or any portion of profits, if any, on such Net Disposition Proceeds investments shall be deposited in fixed or capital assets or other assets useful to the business Prepayment Account and reinvested and disbursed as specified above. If the maturity of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds Loans has been accelerated pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in Article VII, the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving AdvanceAdministrative Agent may, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property apply all amounts on deposit in the Prepayment Account to determine if the then outstanding balance satisfy any of the Term Loan exceeds Obligations. The Borrower hereby grants to the Term Loan Collateral Amount at Administrative Agent, for its benefit and the time of such issuance of Equity Interests. If Agent does not order an appraisal benefit of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property Issuing Bank and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term LoanLenders, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan a security interest in the inverse order of Prepayment Account to secure the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofObligations.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 3 contracts
Samples: Credit Agreement (Amis Holdings Inc), Credit Agreement (Amis Holdings Inc), Credit Agreement (Amis Holdings Inc)
Mandatory Prepayments. (a) When No later than the third (3rd) Business Day following the date of receipt by Holdings or any Borrower sells or otherwise disposes of its Subsidiaries of any Collateral resulting Net Cash Proceeds of any sale or disposition by Holdings or any of its Subsidiaries of any assets in Net Disposition Proceeds in excess of an aggregate amount exceeding $500,000 in 250,000, the aggregate in any fiscal year, other than Inventory in Borrower shall prepay the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Obligations in an amount equal to the Net Disposition Cash Proceeds of such salesale or disposition; provided, such repayments to be made promptly but in no event more than three that (3i) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing Borrower shall not be deemed required to be implied consent prepay the Obligations with respect to any such sale otherwise prohibited by proceeds from the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments sales or dispositions of the Term Loan assets in the inverse order ordinary course of the maturities thereofbusiness (including obsolete or worn-out equipment no longer useful in its business), and (yii) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Default or Event of Default shall have occurred and be continuing and at the Borrowing Agent time of the receipt of proceeds pursuant to this subsection (a) or at the proposed time of the reinvestment of such proceeds, the Borrower shall have notified Agent the option, upon written notice to the Administrative Agent, directly or (x) in the case of proceeds received by a Loan Party, through one or more of its Subsidiaries that is a Loan Party or (y) in the case of proceeds received by a Subsidiary that is not a Loan Party, through one or more of its Subsidiaries, to reinvest such proceeds within two one hundred eighty (2180) Business Days following days of receipt of such Net Disposition Proceeds thereof in assets of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds general type used in fixed or capital assets or other assets useful to the business of the Borrower and its Subsidiaries so long as such proceeds received by a Loan Parties Party are held in Controlled Accounts at SunTrust Bank or subject to Control Account Agreements until reinvested; provided, further that the obligation of the Borrower to prepay the Obligations under this subsection (a) shall also not apply solely to the extent that (A) the sale or disposition was consummated by any Insurance Subsidiary (or Subsidiary thereof) of any of such Insurance Subsidiary’s assets (or the assets of a Subsidiary thereof) and their Subsidiaries, then (B) the dividend of such Net Disposition Cash Proceeds by such Insurance Subsidiary (or Subsidiary thereof) to the Borrower for application of this subsection (a) is prohibited by applicable law (including, without limitation, rules and regulations of any Insurance Regulatory Authority), it being understood and agreed that absent the prohibition set forth in clause (B), the Borrower shall cause such Insurance Subsidiary (or Subsidiary thereof) to immediately make a dividend of the Net Cash Proceeds to the Borrower which the Borrower shall use to prepay the Obligations in accordance with this subsection (a). Any such prepayment shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds accordance with subsection (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicablef) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentSection.
(cb) Borrowers No later than the third (3rd) Business Day following the date of receipt by Holdings or any of its Subsidiaries of any Net Cash Proceeds from any casualty insurance policies or eminent domain, condemnation or similar proceedings, the Borrower shall prepay the outstanding amount of the Term Loans Obligations in an amount equal to twenty-five percent (25%) of Excess all such Net Cash Flow for each fiscal year beginning with the fiscal year ending December 31Proceeds; provided, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent long as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has shall have occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount continuing at the time of such issuance the receipt of Equity Interests. If Agent does not order an appraisal proceeds pursuant to this subsection (b) or at the proposed time of the Equipment and Real Propertyreinvestment of such proceeds, then one hundred percent (100.00%) of the net cash proceeds received from Borrower shall have the issuance of Equity Interests shall be applied option, upon written notice to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term LoanAdministrative Agent, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied directly or (x) first, to the outstanding principal installments of the Term Loan in the inverse order case of the maturities thereof until the outstanding balance proceeds received by a Loan Party, through one or more of the Term its Subsidiaries that is a Loan is equal to the Term Loan Collateral Amount and Party or (y) secondin the case of proceeds received by a Subsidiary that is not a Loan Party, through one or more of its Subsidiaries, to reinvest such proceeds within one hundred eighty (180) days of receipt thereof in assets of the remaining Advances general type used in the business of the Borrower and its Subsidiaries so long as such proceeds received by a Loan Party are held in Controlled Accounts at SunTrust Bank or subject to Control Account Agreements until reinvested; provided, further that the obligation of the Borrower to prepay the Obligations under this subsection (including cash collateralization b) shall also not apply solely to the extent that (A) the Net Cash Proceeds of all the casualty insurance policies or eminent domain, condemnation or similar proceedings were received by any Insurance Subsidiary (or Subsidiary thereof) and (B) the dividend of such Net Cash Proceeds by such Insurance Subsidiary (or Subsidiary thereof) to the Borrower for application of this subsection (b) is prohibited by applicable law (including, without limitation, rules and regulations of any Insurance Regulatory Authority), it being understood and agreed that absent the prohibition set forth in clause (B), the Borrower shall cause such Insurance Subsidiary (or Subsidiary thereof) to immediately make a dividend of the Net Cash Proceeds to the Borrower which the Borrower shall use to prepay the Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(bthis subsection (b), provided however that if no Default or Event of Default has occurred and is continuing, . Any such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property prepayment shall be applied in accordance with subsection (f) of this Section.
(c) No later than the first (1st) Business Day following the date of receipt by Holdings or any of its Subsidiaries of any Net Cash Proceeds from any issuance of Indebtedness by Holdings or any of its Subsidiaries, the Borrower shall prepay the Obligations in an amount equal to all such Net Cash Proceeds; provided, that the Borrower shall not be required to prepay the Obligations with respect to proceeds of Indebtedness permitted under Section 6.67.1; provided, further that the obligation of the Borrower to prepay the Obligations under this subsection (c) shall also not apply solely to the extent that (A) the Net Cash Proceeds of such Indebtedness were incurred and received by any Insurance Subsidiary (or Subsidiary thereof) and (B) the dividend of such Net Cash Proceeds by such Insurance Subsidiary (or Subsidiary thereof) to the Borrower for application of this subsection (c) is prohibited by applicable law (including, without limitation, rules and regulations of any Insurance Regulatory Authority), it being understood and agreed that absent the prohibition set forth in clause (B), the Borrower shall cause such Insurance Subsidiary (or Subsidiary thereof) to immediately make a dividend of the Net Cash Proceeds to the Borrower which the Borrower shall use to prepay the Obligations in accordance with this subsection (c). Any such prepayment shall be applied in accordance with subsection (f) of this Section.
(d) No later than the first (1st) Business Day following the date of receipt by the Borrower or any of its Subsidiaries of any proceeds from key man life insurance policies, the Borrower shall prepay the Obligations in an amount equal to all such proceeds. Any such prepayment shall be applied in accordance with subsection (f) of this Section.
(e) No later than the first (1st) Business Day following the occurrence of an Equity Monetization Event, the Borrower shall prepay the Obligations in full. Any such prepayment shall be applied in accordance with subsection (f) of this Section.
(f) Any prepayments made by the Borrower pursuant to subsection (a), (b), (c), (d) or (e) of this Section shall be applied as follows: first, to the Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents and any amounts payable to the Lenders pursuant to Section 2.15; and second, to the principal balance of the Term Loans, until the same shall have been paid in full, pro rata to the Lenders based on their Pro Rata Shares of the Term Loans, and applied to installments of the Term Loans on a pro rata basis (excluding the final payment due on the Maturity Date); provided, that, after all regularly scheduled amortization payments have been made in full in accordance with Section 2.4, any remaining amounts required to be prepaid under this Section 2.7 shall be applied as a prepayment to the final payment that would otherwise be due on the Maturity Date until paid in full.
(g) The Borrower shall notify the Administrative Agent by written notice of any prepayment pursuant to clauses (a), (b), (c), (d) or (e) of this Section 2.7 not later than 11:00 a.m. (New York City time) one (1) Business Day before the date of prepayment. Each such notice shall specify the prepayment date (which shall be a Business Day), the principal amount of the Loans to be prepaid and a reasonably detailed calculation of the amount of such prepayment. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof. All prepayments of the Loans pursuant to clauses (a), (b), (c), (d) or (e) of this Section 2.7 shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment.
(h) To the extent that this Agreement and the Note Purchase Agreement both require mandatory prepayments for the events described in clauses (a), (b), (c) or (d) of this Section 2.7, the Borrower may pay a portion of the Net Cash Proceeds (or proceeds from key man life insurance policies, as applicable) derived from such events, determined on a Ratable Basis (as defined in the Intercreditor Agreement), to the NPA Agent to prepay Indebtedness (but not any portion of the Make-Whole Amount (as defined in the Note Purchase Agreement)) in accordance with the terms of the Note Purchase Agreement. To the extent that this Agreement and the Note Purchase Agreement both require mandatory prepayments following the occurrence of an Equity Monetization Event as described in clause (e) of this Section 2.7, the parties agree that such mandatory prepayments shall be made on a Ratable Basis (as defined in the Intercreditor Agreement) subject to and in accordance with the Intercreditor Agreement (including, for the avoidance of doubt, Section 5.15(a) of the Intercreditor Agreement).
Appears in 3 contracts
Samples: Term Loan Agreement (Root, Inc.), Term Loan Agreement (Root Stockholdings, Inc.), Term Loan Agreement (Root, Inc.)
Mandatory Prepayments. (a) When In the event the Aggregate Revolving Credit Extensions of Credit exceeds the Line Cap (including after giving effect to any Borrower sells reductions in the Revolving Credit Commitments pursuant to Section 5.4(a)), the Company shall within one (1) Business Day of notice thereof from the Administrative Agent prepay Revolving Credit Loans (including the Swingline Loans) and Cash Collateralize the Revolving L/C Obligations in an aggregate amount equal to such excess.
(b) Upon the Revolving Credit Termination Date, the Company shall, with respect to each then outstanding Letter of Credit, if any, either (i) cause such Letter of Credit to be cancelled without such Letter of Credit being drawn upon or otherwise disposes (ii) Cash Collateralize the Revolving L/C Obligations with respect to such Letter of Credit with a letter of credit issued by banks or a bank satisfactory to the Administrative Agent and each applicable Issuing Lender on terms satisfactory to the Administrative Agent and each applicable Issuing Lender.
(c) If any Credit Party receives any Net Proceeds in respect of any Notes Priority Collateral resulting Prepayment Event, then (i) so long as no Cash Dominion Event has occurred or is in effect, the Company shall, on the next Business Day after the Net Disposition Proceeds thereof are utilized for repayments of the Secured 2026 Notes (or, if the Payment Conditions are then satisfied, any Indebtedness permitted hereunder to be secured by a Pari Passu Second Lien) or reinvested in excess Collateral, in each case, in accordance with the terms of $500,000 in the aggregate in Secured 2026 Notes Indenture (or the indenture or documents governing any fiscal yearIndebtedness permitted hereunder to be secured by a Pari Passu Second Lien), other than Inventory in prepay the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Obligations in an aggregate amount equal to the Net Disposition Proceeds lesser of (A) 100% of such saleNet Proceeds minus amounts so utilized for repayments of the Secured 2026 Notes (or, such repayments if the Payment Conditions are then satisfied, any Indebtedness permitted hereunder to be made promptly but secured by a Pari Passu Second Lien) or reinvested in Collateral, in each case, in accordance with the terms of the Secured 2026 Notes Indenture (or the indenture or documents governing any Indebtedness permitted hereunder to be secured by a Pari Passu Second Lien) and (B) the aggregate outstanding principal amount of the Loans or (ii) if a Cash Dominion Event has occurred and is continuing, the Company shall, within one (1) Business Day following the consummation of the Notes Priority Collateral Prepayment Event, utilize such Net Proceeds to repay all or any portion of the Loans or deposit any remaining Net Proceeds (after giving effect to any repayment of the Loans) into the Asset Sale Reserve Account (for purposes of this clause (ii), the period commencing on the date of consummation of the applicable Notes Priority Collateral Prepayment Event and ending on the earlier of (A) the date that such Cash Dominion Event is no event more than three longer continuing and (3B) the date that is 365 days thereafter (provided that if the Parent or any of its Restricted Subsidiaries enters into a written agreement committing it to reinvest such Net Proceeds after such 365-day period as permitted by the Secured 2026 Notes Indenture, then such 365-day period shall be extended for an additional period not to exceed 180 days), the “Asset Sale Reserve Period”).
(d) Within five (5) Business Days following receipt of such net proceeds, and until the date of paymentincurrence by any Credit Party or any Restricted Subsidiary of any Indebtedness (other than Indebtedness permitted by Section 9.2), the Company shall prepay Revolving Credit Loans and Cash Collateralize the Revolving L/C Obligations in an aggregate amount equal to 100% of the net proceeds received by such proceeds shall be held Person in trust for Agentconnection with such incurrence. The foregoing provisions of this Section 5.6(d) shall not be deemed to be implied consent to any such sale incurrence otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofAgreement.
(e) Other than pursuant If, at the end of any Excess Cash Test Date there are Revolving Credit Loans and/or Revolving L/C Obligations outstanding and the Credit Parties and their Restricted Subsidiaries have Excess Cash exceeding $25,000,000, the Company shall prepay Revolving Credit Loans and Cash Collateralize the Revolving L/C Obligations in an aggregate amount equal to any issuance the lesser of Equity Interests of Borrowers (i) contemplated the amount of such Excess Cash minus $25,000,000 minus the amount of any wires initiated or ACH transfers issued by Section 6.5(d)any Credit Party in the ordinary course of business after the end of such Excess Cash Test Date and prior to 12:00 P.M., New York City time, on the date that such prepayment is required to be made and (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice the aggregate principal amount of such issuance of Equity Interests, Revolving Credit Loans and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the Revolving L/C Obligations then outstanding balance of by 12:00 P.M., New York City time on the Term Loan exceeds next Business Day; provided that prepayments under this Section 5.6(e) shall not require the Term Loan Collateral Amount at the time of such issuance of Equity InterestsCompany to pay any breakage under Section 5.21. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests All prepayments made under this Section 5.6 shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) made first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) prepay any Protective Advances, second, to prepay the remaining Advances Revolving Credit Loans (including cash collateralization the Swingline Loans), third, to the payment of all any Revolving L/C Obligations relating then outstanding, and fourth, to any Cash Collateralize outstanding Letters of Credit, without a corresponding permanent reduction in the Revolving Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofCommitments.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 3 contracts
Samples: Credit Agreement (NGL Energy Partners LP), Credit Agreement (NGL Energy Partners LP), Credit Agreement (NGL Energy Partners LP)
Mandatory Prepayments. In addition to and without limiting any provision of any Loan Document:
(a) When any Borrower sells or otherwise disposes If a Change of any Collateral resulting Control occurs that has not been consented to in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal writing by Agent prior to the Net Disposition Proceeds of such saleconsummation thereof, such repayments on or prior to be made promptly but in no event more than three (3) the first Business Days Day following receipt of such net proceeds, and until the date of paymentsuch Change of Control, such proceeds Borrower shall be held prepay the Loan and all other Obligations (other than, indemnity obligations under the Loan Documents that are not then due and payable or for which any events or claims that would give rise thereto are not then pending) in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, full in cash together with accrued interest thereon to the outstanding principal installments date of prepayment and all other amounts owing to Agent and Lenders under the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofDocuments.
(b) Notwithstanding the foregoingIf Borrower, with respect to in any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a)transaction or series of related transactions, so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for sells any Pledged Receivable or other Collateral notwithstanding that such amount) to cause such Revolving Advances to be madedisposition is prohibited in this Agreement, (ii) all conditions receives any property damage insurance award or any other insurance proceeds of any kind in connection with any Unit within which a Vacation Ownership Interest is situated and related to funding sent forth in Section 8.2 a Pledged Receivable and does not apply such funds to repair or 8.3 (as applicable) of this Agreement have been satisfied and replace the damaged Unit or (iii) Borrowers agree receives any insurance award with respect to use a Vacation Ownership Interest related to any Pledged Receivable, then it shall, subject to, in the proceeds case of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by clauses (b)(ii) and (b)(iii), the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans Club Trust Agreement and any applicable Declaration, deposit 100% (or such lesser amount as is required to indefeasibly pay in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with cash in full the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness Obligations (other than Permitted Indebtednessindemnity obligations under the Loan Documents that are not then due and payable or for which any events or claims that would give rise thereto are not then pending)) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence thereof (net of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%reasonable transaction costs and expenses and taxes) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofLockbox Account.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 3 contracts
Samples: Loan and Security Agreement, Loan and Security Agreement (Bluegreen Vacations Corp), Loan and Security Agreement (Bluegreen Corp)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in No later than the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited receipt by the terms and conditions hereof. Such repayments shall be applied Borrower or any of its Subsidiaries of proceeds of any sale or disposition by the Borrower or such Subsidiary of any of its assets (xexcluding (i) first, to the outstanding principal installments sales of the Term Loan inventory in the inverse order ordinary course of the maturities thereofbusiness, and (yii) secondsales of worn-out, to the remaining Advances obsolete equipment, (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if iii) so long as no Default or Event of Default has occurred and is continuing, sales of assets the proceeds of which are invested into the businesses of the Borrower and its Subsidiaries within 180 days after such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit lastassets are sold and (iv) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize other sales of assets of the Borrower or any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance its Subsidiaries with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures an aggregate book value not to exceed $4,000,000 per fiscal year or 1,000,000 in any Fiscal Year) the Borrower shall prepay the Loans (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance without any associated permanent reduction of the Term Loan exceeds Commitments) in an amount equal to all such proceeds, net of commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by the Term Loan Collateral Amount at the time of Borrower or such issuance of Equity InterestsSubsidiary in connection therewith (in each case, paid to non-Affiliates). If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests Any such prepayment shall be applied to in accordance with Section 2.13(d).
(b) If the Revolving Advances. If Agent orders an appraisal Borrower or any of its Subsidiaries issues any debt securities (other than Indebtedness permitted under Section 7.1), then no later than the Business Day following the date of receipt of the Equipment and Real Property and proceeds thereof, Borrower shall prepay the Term Loan Collateral Amount exceeds the then outstanding balance Loans (without any associated permanent reduction of the Term LoanCommitments) in an amount equal to all such proceeds, then one hundred percent (100.00%) net of underwriting discounts and commissions and other reasonable costs paid to non-Affiliates in connection therewith. Any such net cash proceeds received from the issuance of Equity Interests prepayment shall be applied to in accordance with Section 2.13(d).
(c) No later than the Revolving Advances. If Agent orders an appraisal Business Day following the date of receipt by the Equipment and Real Property and the then outstanding balance Borrower or any of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) its Subsidiaries of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments any settlement of the Term Loan or payment in the inverse order respect of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations any property or casualty insurance claim or any condemnation proceeding relating to any outstanding Letters asset of Credit the Borrower or any of its Subsidiaries in accordance with respect of which the provisions of Section 3.2(b)associated proceeds exceed $1,000,000 (excluding, provided however that if so long as no Default or Event of Default has occurred and is continuing, proceeds which are invested into the businesses of the Borrower and its Subsidiaries within 180 days after the receipt of such repayments proceeds) the Borrower shall be applied prepay the Loans in an amount equal to cash collateralize any Obligations related all such proceeds and payable by such Borrower or such Subsidiary in connection therewith (in each case, paid to outstanding Letters of Credit last) in non-Affiliates). Any such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property prepayment shall be applied in accordance with Section 6.62.13(d).
(d) Subject to Section 8.2, any prepayments made by the Borrower pursuant to Sections 2.13(a), (b) or (c) above shall be applied as follows: first, to Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents; second, to all other fees and reimbursable expenses of the Lenders and the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective Pro Rata Shares of such fees and expenses; third, to interest then due and payable on the Loans made to Borrower, pro rata to the Lenders based on their respective Pro Rata Shares; fourth, to the principal balance of the Swingline Loans, until the same shall have been paid in full, to the Swingline Lender; fifth, to the principal balance of the Term Loans, until the same shall have been paid in full, pro rata to the Lenders based on their respective Pro Rata Shares, sixth, to the principal balance of the Revolving Loans, until the same shall have been paid in full, pro rata to the Lenders based on their respective Pro Rata Shares and seventh, to the extent that an Event of Default has occurred and is continuing, to cash collateralize the Letters of Credit in accordance with Section 2.23(g) in an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon.
(e) If at any time the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to Section 2.9 or otherwise, the Borrower shall immediately repay Swingline Loans and Revolving Loans in an amount equal to such excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.20. Each prepayment shall be applied first to the Swingline Loans to the full extent thereof, second to the Base Rate Loans to the full extent thereof, and finally to Eurodollar Loans to the full extent thereof. If after giving effect to prepayment of all Swingline Loans and Revolving Loans, the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Issuing Bank and the Lenders, an amount in cash equal to such excess plus any accrued and unpaid fees thereon to be held as collateral for the LC Exposure. Such account shall be administered in accordance with Section 2.23(g) hereof.
Appears in 3 contracts
Samples: Revolving Credit and Term Loan Agreement (Strayer Education Inc), Revolving Credit and Term Loan Agreement (Strayer Education Inc), Revolving Credit and Term Loan Agreement (Strayer Education Inc)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes The Borrowers shall prepay the Loans in accordance with the following:
(i) Substantially concurrently with the incurrence of any Collateral resulting in Net Disposition Proceeds in excess Indebtedness by any Loan Party or any of $500,000 in the aggregate in any fiscal year, its Subsidiaries (other than Inventory in the Ordinary Course of Business or Dispositions otherwise Indebtedness permitted under Section 7.19.01), the Borrowers shall repay prepay the Advances Term Loans together with the applicable Prepayment Premium in an amount equal to one hundred percent (100%) of the applicable Net Debt Proceeds, to be applied as set forth in Section 4.02(b). Nothing in this Section 4.02(a)(i) 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 Loan Agreement.
(ii) Within five (5) Business Days of the receipt by any Loan Party or any of its Subsidiaries of any proceeds from any Disposition under Section 9.04(b), the Borrowers shall prepay the Term Loans in an amount equal to one hundred percent (100%) of the Net Disposition Proceeds of from such saleDispositions that, such repayments in the aggregate, exceed $500,000 per fiscal year, to be made promptly but applied as set forth in no event more than three Section 4.02(b); provided, however, that the Borrowers may, at Administrative Borrower’s option by written notice to the Administrative Agent on or prior to the date that is five (35) Business Days following after receipt of such net proceedsNet Disposition Proceeds, and until within twelve (12) months after such event, reinvest or commit to reinvest such Net Disposition Proceeds in assets to be used in the date business of payment, such proceeds shall be held in trust for Agent. The foregoing the Borrowers so long as (A) the aggregate amount of Net Disposition Proceeds reinvested by the Borrowers at any time after the Closing Date pursuant to this clause (ii) shall not be deemed to be implied consent to exceed $2,500,000 during any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied fiscal year, (xB) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied and the Administrative Borrower certifies in writing to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as the Administrative Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as that no Default or Event of Default shall have has occurred and be is continuing and the Borrowing Agent shall have notified Agent within two (2C) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election are held in an account subject to reinvest all or any portion of such Net Disposition Proceeds an Account Control Agreement while awaiting reinvestment. Nothing in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds this Section 4.02(a)(ii) shall be applied by Agent construed to permit or waive any Default or Event of Default arising from any Disposition not permitted under the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) terms of this Agreement have been satisfied and Loan Agreement.
(iii) Borrowers agree to use the proceeds Within five (5) Business Days of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to receipt by any Disposition or other transaction prohibited by the terms and conditions of this Agreement Loan Party or any Other Document.
(c) of its Subsidiaries of any proceeds from Casualty Events that, in the aggregate, exceed $500,000 per fiscal year, the Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00100%) of such cash proceeds Net Casualty Proceeds, to be applied as set forth in Section 4.02(b); provided, however, that the Borrowers may, at Administrative Borrower’s option by written notice to the Agents no later than twelve (12) months 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 or otherwise in the case business of Borrowers so long as such Net Casualty Proceeds are in fact used or are committed to be used to rebuild or replace the damaged, destroyed or condemned assets or property or otherwise useful in the business of Borrowers within such twelve (12) months following the receipt of such incurrence or issuance Net Casualty Proceeds, with the amount of Indebtedness. Such repayments will Net Casualty Proceeds not so used after such period to be applied as set forth in Section 4.02(b); so long as (xA) firstthe aggregate amount of Net Casualty Proceeds reinvested by the Borrowers at any time after the Closing Date pursuant to this clause (iii) shall not exceed $2,500,000 during any fiscal year, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (yB) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) and the Administrative Borrower certifies in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied writing to the Revolving Advances. If Administrative Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, continuing and (C) such repayments Net Casualty Proceeds are held in an account subject to an Account Control Agreement while awaiting reinvestment. Nothing in this Section 4.02(a)(iii) shall be applied construed to cash collateralize permit or waive any Obligations related to outstanding Letters Default or Event of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofDefault arising, directly or indirectly, from any Casualty Event.
(fiv) All Within five (5) Business Days of the receipt by any Loan Party or any of its Subsidiaries of (A) any Net Equity Proceeds which exceed $20,000,000 in the aggregate over the life of this Loan Agreement from one or more Specified Issuances, the Borrowers shall prepay the Term Loans in an amount equal to fifty percent (50%) of such Net Equity Proceeds, to be applied as set forth in Section 4.02(b) or (B) any Net Equity Proceeds from any Equity Cure Investment, the Borrowers shall prepay the Term Loans in an amount equal to one hundred percent (100%) of such Net Equity Proceeds, to be applied as set forth in Section 4.02(b). Nothing in this Section 4.02(a)(iv) shall be construed to permit or waive any Default or Event of Default arising, directly or indirectly, from any issuance of Capital Stock that is not permitted under the terms of this Loan Agreement.
(v) Within five (5) Business Days of the receipt by or on behalf of any Loan Party or any Affiliate of any Loan Party of the net cash proceeds received of any tax refunds, the Borrowers shall prepay the Term Loans in an amount equal to one hundred percent (100%) of all such net cash proceeds of tax refunds, to be applied as set forth in Section 4.02(b).
(vi) For each fiscal year of Spark, commencing with the fiscal year ending December 31, 2019 (limited to the period from the Closing Date through December 31, 2019 for such fiscal year), on the date that is five (5) Business Days after the earlier of (A) the date upon which annual financial statements are required to be delivered pursuant to Section 8.01(c) for such fiscal year and (B) the date upon which annual financial statements are actually delivered pursuant to Section 8.01(c) for such fiscal year, (x) the Administrative Borrower shall deliver to the Administrative Agent a written calculation of Consolidated Excess Cash Flow for the applicable fiscal year, certified by an Authorized Officer of the Borrower, and (y) the Borrowers shall prepay the Term Loan in amounts attributable to the Term Loan equal to the Term Loan ECF Percentage of Consolidated Excess Cash Flow for such fiscal year; provided that all (x) voluntary prepayments of the Term Loans paid in cash during the applicable fiscal year and (y) voluntary prepayments of Revolving Loans paid in cash during the applicable fiscal year to the extent accompanied by a permanent reduction of the Revolving Loan Commitment, will reduce the amount of prepayments required to be made pursuant to this Section 4.02(a)(vi) on a dollar-for-dollar basis. Calculations of amounts payable under this Section 4.02(a)(vi) shall be based on the annual financial statements for Spark and its Subsidiaries for the applicable fiscal year. Prepayments of Term Loan under this Section 4.02(a)(vi) shall be applied, in each case, in the inverse order of maturity on a dollar for dollar basis, and shall be made, in each case, pro rata among the applicable Lenders.
(vii) Notwithstanding anything to the contrary herein, immediately upon any acceleration of any Obligations pursuant to Section 10.02, (whether before, during or after the commencement of any proceeding under the Bankruptcy Code involving the Borrowers or Agent any other Loan Party), the Borrowers shall immediately repay all the Loans together with the applicable Prepayment Premium, unless only a portion of the Loans is so accelerated (in which case the portion so accelerated shall be so repaid together with the applicable Prepayment Premium). The parties hereto acknowledge and agree that the Prepayment Premium referred to in this Section 4.02(a)(vii) (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowersis additional consideration for providing the Loans, or (ii) as constitutes reasonable liquidated damages to compensate the Lenders for (and is a result proportionate quantification of) the actual loss of the anticipated stream of interest payments upon an early prepayment of the Loans (such damages being otherwise impossible to ascertain or even estimate for various reasons, including, without limitation, because such damages would depend on, among other things, (x) when the Loans might otherwise be repaid and (y) future changes in interest rates which are not readily ascertainable on the Closing Date), and (iii) is not a penalty to punish the Borrowers for their early prepayment of the Loans or for the occurrence of any taking or condemnation Event of Default.
(viii) Concurrently with any assets or property Change of Control, the Borrowers shall be applied in accordance repay all of the Loans together with Section 6.6the applicable Prepayment Premium and all other outstanding Obligations.
Appears in 3 contracts
Samples: Loan Agreement (Spark Networks SE), Loan Agreement (Spark Networks SE), Loan Agreement (Spark Networks SE)
Mandatory Prepayments. (a) When any On each date on which Agent actually receives a distribution of Net Proceeds and if Agent is not required to make such Net Proceeds available to Borrower sells or otherwise disposes for the Restoration of any Collateral resulting the Property pursuant to Section 5.3, Agent may, in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal yearits sole and absolute discretion, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal elect to either make the Net Disposition Proceeds of such saleavailable for Restoration pursuant to Section 5.3 or use the Net Proceeds to prepay, such repayments to be made promptly but in no event more than three without premium or penalty (3) Business Days following receipt of such net proceedsincluding the Spread Maintenance Premium), and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments balance of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances Note in an amount equal to one hundred percent (100.00100%) of such cash proceeds Net Proceeds. Any prepayment received by Agent for the ratable benefit and account of the Lenders and pursuant to this Section 2.5.2 on a date other than a Payment Date shall be held by Agent as collateral security for the Loan in the case of an interest bearing account, with such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, interest accruing to the outstanding principal installments benefit of the Term Loan in the inverse order of the maturities thereof Borrower, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as by Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with on the terms hereofnext Payment Date.
(eb) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d)In addition, (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year Borrower shall prepay without premium or (iii) used to fund Permitted Acquisitionspenalty, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interestsincluding, and Agent in its sole discretionwithout limitation, within such ten (10) day periodthe Spread Maintenance Premium, may request an appraisal of Equipment and Real Property to determine if the then outstanding principal balance of the Term Note in an amount equal to the amount required by Agent due to changes in tax and debt credit pursuant to Section 5.3 of the Mortgage or if Borrower prepays a portion of the Loan exceeds the Term Loan Collateral Amount at the time pursuant to Section 6.5.6.
(c) In each instance of such issuance of Equity Interestsprepayment under this Section 2.5.2, Borrower shall be required to pay all other sums due hereunder (including under Sections 2.2.7 and 2.4.3) and no principal amount repaid may be reborrowed.
(d) All prepayments are to be made on a Payment Date. If any prepayment is received by Agent does not order an appraisal of on a date other than a Payment Date the Equipment same shall be held by Agent as collateral security for the Loan and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to by the Revolving Advances. If Agent orders an appraisal of Lenders on the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofnext Payment Date.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 3 contracts
Samples: Loan Agreement (Empire State Realty Trust, Inc.), Loan Agreement (Empire State Building Associates L.L.C.), Loan Agreement (Empire State Realty Trust, Inc.)
Mandatory Prepayments. Sections 2.20(a) and 2.20(b) of the Loan Agreement shall be amended and restated in their entirety as follows:
(a) When Subject to Section 7.1 hereof, when any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Business, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds net proceeds of such salesale (i.e., gross proceeds less the reasonable direct costs of such sales or other dispositions), such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied to the outstanding Advances (x) first, to the outstanding principal installments of the Term Loan Equipment Loans in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow reborrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of (x) any issuance or other incurrence of Indebtedness (other than Indebtedness described in the definition of Permitted Indebtedness) by Borrowers, (y) the issuance of any Equity Interests by any Borrower, or (z) the receipt by any Borrower of the proceeds of any grant, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of (i) the cash proceeds from any such issuance or incurrence of Indebtedness, (ii) the net cash proceeds of any issuance of Equity Interests, or (iii) the cash proceeds of any such grants, as applicable, repay the Advances in an amount equal to (x) one hundred percent (100.00100%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00100%) of such net cash proceeds received from in the case of an issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment Interests, and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then (z) one hundred percent (100.00100%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order case of the maturities thereof until the outstanding balance receipt of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization proceeds of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such grants. Such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall will be applied in accordance with the same manner as set forth in Section 6.62.20(a) hereof. The foregoing requirements regarding proceeds of grants shall not apply to the extent that they would require Borrowers to violate the terms of any grant agreement restricting the use of proceeds of such grant.
Appears in 3 contracts
Samples: Revolving Credit and Security Agreement (IBEX LTD), Revolving Credit and Security Agreement (IBEX LTD), Revolving Credit and Security Agreement (IBEX Holdings LTD)
Mandatory Prepayments. (i) If, at any time or for any reason, the amount of Obligations owed by Borrower to Lender pursuant to Sections 2.1 is greater than the Dollar limitations set forth in Sections 2.1, (an “Overadvance”), Borrower immediately shall pay to Agent, in cash, the amount of such excess, which amount shall be used by Agent to reduce the Obligations in accordance with the priorities set forth in Section 2.4(b). In addition, Borrower hereby promises to pay the Obligations (including principal, interest, fees, costs, and expenses) in Dollars in full to Agent as and when due and payable under the terms of this Agreement and the other Loan Documents.
(ii) Immediately upon the receipt by Borrower or any of its Subsidiaries of the proceeds of any Disposition by Borrower or any of its Subsidiaries of property or assets (excluding sales or dispositions which qualify as Permitted Dispositions under clauses (a) When any through (f), (h), or (i) of the definition of Permitted Dispositions), Borrower sells or otherwise disposes shall prepay the outstanding principal amount of any Collateral resulting the Obligations in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under accordance with Section 7.1, Borrowers shall repay the Advances 2.4(f)(i) in an amount equal to 100% of the Net Disposition Cash Proceeds (including insurance proceeds and condemnation awards and payments in lieu thereof) received by such Person in connection with such sales or dispositions; provided that, so long as (A) no Default or Event of Default shall have occurred and is continuing, (B) the Net Cash Proceeds of such saleDisposition are held in a cash collateral account in which Agent has a perfected first-priority security interest, and (C) Borrower or its Subsidiaries, as applicable, complete such repayments to be made promptly but in no event more than three (3) Business Days following replacement, purchase, or construction within 180 days after the initial receipt of such net proceedsmonies, Borrower and until its Subsidiaries shall have the date option to apply such monies to the costs of paymentreplacement of the property or assets that are the subject of such sale or disposition unless and to the extent that such applicable period shall have expired without such replacement, purchase or construction being made or completed, in which case, such proceeds monies shall be held paid to Agent and applied in trust accordance with Section 2.4(f). Nothing contained in this Section 2.4(e)(ii) shall permit Borrower or any of its Subsidiaries to sell or otherwise dispose of any property or assets other than in accordance with Section 7.4.
(iii) Promptly upon the issuance or incurrence by Borrower or any of its Subsidiaries of any Indebtedness (except for AgentIndebtedness permitted under Section 7.1) Borrower shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(f) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such issuance or incurrence. The foregoing provisions of this Section 2.4(e)(iii) shall not be deemed to be implied consent to any such sale issuance or incurrence otherwise prohibited by the terms and conditions hereof. Such repayments of this Agreement.
(iv) Promptly upon the issuance by Borrower or any of its Subsidiaries of any Stock (except for (A) the issuance of Stock by Borrower to any Permitted Holder, (B) the issuance of Stock of Borrower to directors, officers and employees of Borrower and its Subsidiaries pursuant to employee stock option plans (or other employee incentive plans or other compensation arrangements) approved by the Board of Directors) Borrower shall be applied (x) first, to prepay the outstanding principal installments amount of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last2.4(f) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve an amount equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount 50% of the Net Disposition Cash Proceeds (received by such Person in connection with such issuance; provided, however, that if the Leverage Ratio of Borrower and its Subsidiaries as of the end of the fiscal quarter most recently ended prior to the date of the issuance of such Stock as to which financial statements were required to be delivered pursuant to this Agreement was equal to or less than 2.0:1.0, then no prepayment in respect of such portion thereof) to pay the actual cost issuance of reinvestment and the reserve with respect to such amount Stock shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) required. The provisions of this Agreement have been satisfied and (iiiSection 2.4(e)(iv) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction such issuance otherwise prohibited by the terms and conditions of this Agreement or any Other DocumentAgreement. For the avoidance of doubt, this Section 2.4(e)(iv) shall not apply to Qualifying IPO.
(cv) Borrowers Within 10 days of delivery to Agent of audited annual financial statements pursuant to Section 6.3(b), commencing with the delivery to Agent of the financial statements for Borrower’s fiscal year ended December 31, 2015 or, if such financial statements are not delivered to Agent on the date such statements are required to be delivered pursuant to Section 6.3(b), within 10 days after the date such statements were required to be delivered to Agent pursuant to Section 6.3(b), Borrower shall (A) if such financial statements demonstrate that the Leverage Ratio of Borrower and its Subsidiaries as of the end of such fiscal year was greater than 1.50:1.00, prepay the outstanding principal amount of the Term Loans Obligations in accordance with Section 2.4(f) in an amount equal to twenty-five percent (25%) 50% of the Excess Cash Flow of Borrower and its Subsidiaries for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount and (B) if such financial statements demonstrate that the Leverage Ratio of Borrower and its Subsidiaries as of the end of such fiscal year was 1.50:1.0 or less, then no prepayment shall be applied required. The foregoing to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so deliveredcontrary notwithstanding, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c)at Agent’s election, subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole and absolute discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance remaining amount of the capital expenditures projected to be made during such fiscal year exceeds the remaining amount of the Capex Term Loan exceeds Commitments at such time, then Agent may permit Borrower to reduce the Term Loan Collateral Amount at amount of the time mandatory prepayment that would otherwise be due and payable pursuant to this Section 2.4(e)(v) to the extent of such issuance of Equity Interests. If Agent does excess (but not order to an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan amount that is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(bless than $0), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 3 contracts
Samples: Loan and Security Agreement (Freshpet, Inc.), Loan and Security Agreement (Freshpet, Inc.), Loan and Security Agreement (Freshpet, Inc.)
Mandatory Prepayments. (ai) When If at any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in time the aggregate in any fiscal year, other than Inventory in outstanding balances of the Ordinary Course Revolving Loan exceeds the lesser of Business or Dispositions otherwise permitted under Section 7.1(A) the Maximum Amount less the aggregate outstanding Swing Line Loan at such time and (B) the Aggregate Borrowing Base less the aggregate outstanding Swing Line Loan at such time, Borrowers shall immediately repay the aggregate outstanding Revolving Credit Advances to the extent required to eliminate such excess. If any such excess remains after repayment in full of the aggregate outstanding Revolving Credit Advances, Borrowers shall provide cash collateral for the Letter of Credit Obligations in the manner set forth in Annex B to the extent required to eliminate such excess. Furthermore, if, at any time, the outstanding balance of the Revolving Loan to any Borrower exceeds such Borrower’s separate Borrowing Base less the outstanding balance of the Swing Line Loan to such Borrower, the applicable Borrower shall immediately repay its Revolving Credit Advances in the amount of such excess (and, to the extent necessary, provide cash collateral for its Letter of Credit Obligations as described above), provided, that as to any Revolving Advances consisting of H&E Great Northern Advances included in such Revolving Loan balance, “such Borrower’s separate Borrowing Base” shall mean the Great Northern Borrowing Base.
(ii) Immediately upon receipt by any Credit Party of proceeds of any asset disposition (excluding proceeds of dispositions of Equipment Inventory and P&E permitted by Section 6.8 having an aggregate Net Book Value in any one Fiscal Year, not exceeding $500,000) or any sale of Stock of any Subsidiary of such Credit Party, Borrowers shall prepay the Loans in an amount equal to all such proceeds, net of (A) commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by any Credit Party in connection therewith (in each case, paid to non-Affiliates), (B) amounts payable to holders of senior Liens (to the Net Disposition Proceeds extent such Liens constitute Permitted Encumbrances hereunder), if any, on the assets so disposed and (C) transfer taxes plus an appropriate reserve for income taxes in accordance with GAAP in connection therewith. Any such prepayment shall, subject to Section 1.3(b)(iv), be applied in accordance with Section 1.3(c).
(iii) If any Credit Party issues Stock or any Indebtedness (other than Indebtedness permitted by Section 6.3) in excess of $1,000,000 in the aggregate of such saleStock and such Indebtedness, such repayments to be made promptly but in no event more later than three (3) the Business Days Day following receipt of such net proceeds, and until the date of paymentreceipt of the cash proceeds thereof, the issuing Credit Party shall prepay the Loans in an amount equal to all such proceeds proceeds, net of underwriting discounts and commissions and other reasonable costs paid to non-Affiliates in connection therewith; provided, that no such prepayment shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) firstrequired, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if so long as no Default or Event of Default has occurred and is continuing, from the proceeds of any issuance of Stock by a Credit Party (i) to any director, officer or other employee of such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters Credit Party, the total proceeds of Credit lastwhich do not exceed $5,000,000 in the aggregate, (ii) in connection with the Related Transactions, (iii) as consideration for any Person (other than any Affiliate of a Credit Party) providing permitted Indebtedness under Section 6.3, (iv) to any other Credit Party or (v) as consideration to any Person (other than an Affiliate) selling assets in any Permitted Acquisition. Any such order as Agent may determineprepayment shall, subject to Borrowers’ ability to re-borrow Revolving Advances Section 1.3(b)(iv), be applied in accordance with the terms hereofSection 1.3(c).
(biv) Notwithstanding In the foregoingevent that Section 1.3(b)(i), (ii) or (iii) shall require any prepayment to be made on a day other than an Interest Payment Date, then upon receipt of such prepayment and to the extent requested by any Borrower, Agent shall hold such amount as cash collateral (provided that the Borrower delivering the same shall have executed and delivered such documents as Agent shall have requested in connection with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a)such cash collateral) and, so long as no Default or Event of Default shall have occurred and be continuing and continuing, shall not apply such cash collateral to the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of prepayment under the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion paragraph of such Net Disposition Proceeds in fixed or capital assets or other assets useful to this Section 1.3 until the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds next succeeding Interest Payment Date. Such cash collateral shall be applied invested in Cash Equivalents as directed by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit Borrower in accordance with such documents. Interest earned on such cash collateral shall accrue for the provisions account of Section 3.2(b)the Borrower providing the same, provided however that if shall constitute additional cash collateral and (assuming no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit lastcontinuing) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) firstbe, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) secondextent remaining, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofprepayment on such next succeeding Interest Payment Date.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 3 contracts
Samples: Loan Agreement (H&E Equipment Services, Inc.), Loan Agreement (H&E Equipment Services, Inc.), Loan Agreement (H&E Equipment Services, Inc.)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in No later than the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days tenth calendar day following receipt of such net proceeds, and until the date of paymentreceipt by any Obligor or any of its Restricted Subsidiaries of any Net Asset Sale Cash Proceeds from any Asset Sale, the Company shall apply all such proceeds shall be held Net Asset Sale Cash Proceeds to repay any outstanding Loans as set forth in trust for Agent. The foregoing shall not be deemed Section 2.13(a); provided that, if the Borrower provides written notice to be implied consent to the Administrative Agent within seven calendar days of the date any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) firstNet Asset Sale Cash Proceeds are so received of its intention to undertake such an investment, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), then so long as no Event of Default shall have occurred and be continuing and continuing, the Borrowing Agent Company shall have notified Agent within two (2) Business Days following receipt the option, directly or indirectly or through one or more of its Restricted Subsidiaries, to invest such Net Disposition Asset Sale Cash Proceeds within twelve months of receipt thereof in assets of the applicable Loan Party’s or general type used in the business of the Parent and its Subsidiary’s election to reinvest all or Restricted Subsidiaries; provided, further, that, if any portion of such Net Disposition Asset Sale Cash Proceeds in fixed or capital assets or other assets useful to have not been so reinvested at the business end of such twelve-month period, the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds Borrower shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve apply an amount equal to the amount of such Net Disposition Asset Sale Cash Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers that have not been so reinvested as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent set forth in Section 8.2 or 8.3 2.13(a).
(as applicableb) If at any time, the Aggregate Total Exposure exceeds the aggregate Revolving Commitments then in effect, the Borrower shall forthwith prepay first, Loans, and second Cash Collateralize the outstanding amount of this Agreement have been satisfied and (iii) Borrowers agree Letter of Credit Usage at the Agreed L/C Cash Collateral Amount, to use the proceeds of extent necessary so that the Aggregate Total Exposure shall not exceed the Revolving Advances to pay Commitments then in effect (or, in the cost case of Letter of Credit Usage, such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by amounts are fully Cash Collateralized in compliance with the terms and conditions of this Agreement or any Other DocumentAgreed Cash Collateral Amount).
(c) Borrowers shall prepay If, after giving effect to any termination of or reduction of the outstanding Revolving Commitments, the Letter of Credit Sublimit exceeds the amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31Revolving Commitments, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount sublimit shall be applied to automatically reduced by the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances excess (including cash collateralization of all Obligations relating a corresponding reduction to any outstanding Letters each Issuing Bank’s Letter of Credit in accordance with Issuer Sublimit (ratably) unless otherwise agreed by the provisions of Section 3.2(bBorrower and each applicable Issuing Bank), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 3 contracts
Samples: Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.), Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.), Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.)
Mandatory Prepayments. If Agent is not obligated to make Net Proceeds available to Borrower for Restoration and determines not to make any such Net Proceeds available to Borrower for Restoration, on the next occurring Monthly Payment Date following the date on which (a) When Agent actually receives any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofProceeds, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of has determined that such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by against the Debt, Borrower shall prepay, or authorize Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such apply Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advanceprepayment of, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances Debt in an amount equal to one hundred percent (100.00100%) of such cash proceeds Net Proceeds. Except during an Event of Default, such Net Proceeds shall be applied by Agent as follows in the case following order of priority: First, to any other amounts (other than principal and interest) then due and payable under the Loan Documents, including any costs and expenses of Agent and Lenders in connection with such incurrence or issuance of Indebtedness. Such repayments will be applied (x) firstprepayment); Second; accrued and unpaid interest at the Interest Rate; and Third, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, Outstanding Principal Balance. Notwithstanding anything herein to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b)contrary, provided however that if so long as no Default or Event of Default has occurred and is continuing, such repayments no Spread Maintenance Premium or any other prepayment premium, penalty or fee shall be applied to cash collateralize due in connection with any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than prepayment made pursuant to this Section 2.4.3. In no event shall any issuance of Equity Interests of Borrowers (iSpread Maintenance Premium be due in connection with any prepayment with Net Proceeds or pursuant to Section 5.4(c) contemplated by made after the Spread Maintenance Date. Any partial principal prepayment under this Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests 2.4.3 shall be applied to the Revolving Advances. If Agent orders an appraisal last payments of principal due under the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 3 contracts
Samples: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Mandatory Prepayments. (ai) When If at any Borrower sells or otherwise disposes time, the aggregate principal amount of Total Outstandings (excluding the face amount of any Collateral resulting in Net Disposition Proceeds in excess Letters of $500,000 Credit that are Cash Collateralized or back-stopped to the reasonable satisfaction of the Administrative Agent) exceeds the Line Cap, the Borrowers shall within one Business Day, upon notification by the Administrative Agent, prepay the Swing Line Loans first and then prepay (or Cash Collateralize, in the aggregate in any fiscal yearamount required by Section 2.03(f), other than Inventory in the Ordinary Course case of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay Letters of Credit) the Advances other Loans then outstanding in an amount equal to such excess; provided that nothing in this clause (b)(i) shall reduce the Net Disposition Proceeds Revolving Credit Commitments.
(ii) Subject to Section 3.04 hereof, all such payments in respect of such salethe Loans pursuant to this Section 2.05 shall be without premium or penalty. All interest accrued on the principal amount of the Loans paid pursuant to this Section 2.05 shall be paid, such repayments or may be charged by the Administrative Agent to be made promptly but in no event more than three (3any loan account(s) Business Days following receipt of such net proceedsthe Borrowers, and until at the Administrative Agent’s option, on the date of such payment. Interest shall accrue and be due, until the next Business Day, if the amount so paid by the Borrowers to the bank account designated by the Administrative Agent for such proceeds purpose is received in such bank account after 3:00 p.m., New York City time.
(iii) At all times after the occurrence and during the continuance of a Cash Dominion Period and notification thereof by the Administrative Agent to the Administrative Borrower, on each Business Day, the Administrative Agent shall be apply all same day funds in excess of $2,000,000 (other than Excluded Funds held in trust for Excluded Accounts) credited to the Concentration Account and all amounts received pursuant to this Section 2.05(b) to one or more accounts maintained by Administrative Agent or such other account as directed by the Administrative Agent. The foregoing shall not be deemed to be implied consent to any All amounts received in such sale otherwise prohibited by the terms and conditions hereof. Such repayments account shall be applied (xand allocated) first, to by the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit Administrative Agent in accordance with the provisions of Section 3.2(b), 8.04; provided however that if no Default or Event of Default has occurred and is continuing, such repayments amounts shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determineclauses “First”, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof“Fourth” or “Ninth” through “Last” thereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 3 contracts
Samples: Abl Credit Agreement (Utz Brands, Inc.), Credit Agreement (Utz Brands, Inc.), Abl Credit Agreement (Collier Creek Holdings)
Mandatory Prepayments. (a) When If at any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in time, (x) the aggregate principal amount of Revolving Credit Outstandings exceeds the aggregate Maximum Revolving Credit at such time or (y) the aggregate principal amount of Revolving Credit Outstandings plus the Term Outstandings exceed the aggregate Maximum Credit at such time, the Borrower shall, in any fiscal yeareach case, forthwith, upon notification by the Administrative Agent, prepay the Swing Loans first and then the other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Revolving Loans then outstanding in an amount equal to such excess. If any such excess remains after repayment in full of the Net Disposition Proceeds aggregate outstanding Swing Loans and the other Revolving Loans, the Borrower shall Cash Collateralize the Letter of Credit Obligations in the manner set forth in Section 10.5 in an amount equal to 101% of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agentexcess. The foregoing shall not be deemed to be implied consent to If any such sale otherwise prohibited by excess remains after repayment in full of the terms aggregate outstanding Swing Loans and conditions hereof. Such repayments the other Revolving Loans and the Cash Collateralization of the Letter of Credit Obligations as provided above, the Borrower shall be applied (x) first, to the outstanding principal installments of then prepay the Term Loan then outstanding in the inverse order of the maturities thereof, and (y) second, an amount equal to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofexcess.
(b) Notwithstanding If (x) at any time during a Cash Dominion Period or (y) in respect of any Disposition that would result in the foregoingoccurrence of a Cash Dominion Period, with respect to any Loan Party or any of its Subsidiaries receives any Net Cash Proceeds arising from any Disposition Proceeds which would otherwise give rise in respect of any Current Asset Collateral outside of the ordinary course of business, subject to a prepayment under Section 2.20(a)the Intercreditor Agreement, so long as no Event of Default the Borrower shall have occurred and be continuing and the Borrowing Agent shall have notified Agent promptly (but in any event within two five (25) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to receipt) prepay the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent 100% of such Net Cash Proceeds (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31and, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding extent such Net Cash Proceeds exceed the aggregate principal installments amount of the Term Loan in the inverse order Revolving Loans outstanding, Cash Collateralize Letters of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances Credit in an amount equal to one hundred percent up to 101% of the aggregate maximum drawable amount of such Letters of Credit).
(100.00%c) Subject to Section 3.5 hereof, all such payments in respect of the Loans pursuant to this Section 2.9 shall be without premium or penalty. All interest accrued on the principal amount of the Loans paid pursuant to this Section 2.9 shall be paid, or may be charged by the Administrative Agent to any loan account(s) of such cash proceeds in the case Borrower, at the Administrative Agent’s option, on the date of such incurrence or issuance of Indebtednesspayment. Such repayments will Interest shall accrue and be applied (x) firstdue, until the next Business Day, if the amount so paid by the Borrower to the outstanding principal installments bank account designated by the Administrative Agent for such purpose is received in such bank account after 3:00 p.m.
(d) At all times after the occurrence and during the continuance of Cash Dominion Period and notification thereof by the Term Loan in the inverse order of the maturities thereof and (y) second, Administrative Agent to the remaining Advances Borrower (including cash collateralization of all Obligations relating subject to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b10.3 and to the terms of the Security Agreement), provided however on each Business Day, at or before 1:00 p.m., the Agent shall apply all Same Day Funds credited to the Concentration Account and all amounts received pursuant to Section 2.9(b), first to pay any fees or expense reimbursements then due to the Administrative Agent, the Issuers and the Lenders (other than in connection with Cash Management Obligations, Obligations in respect of Secured Hedge Agreements or any Revolving Commitment Increases), pro rata, second to pay interest due and payable in respect of any Revolving Loans, Swing Loans and any Protective Advances that if no Default or Event may be outstanding, pro rata, third to prepay the principal of Default has occurred any Protective Advances that may be outstanding, pro rata, fourth to prepay the principal of the Revolving Loans, Swing Loans and is continuing, such repayments shall be applied to cash collateralize any Obligations related to Cash Collateralize outstanding Letters Letter of Credit last) Obligations, pro rata, fifth to pay interest due and payable in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to respect of any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d)Term Loans, (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interestspro rata, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied sixth to the Revolving Advances. If Agent orders an appraisal Borrower or such other Person entitled thereto or as directed by a court of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofcompetent jurisdiction.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 3 contracts
Samples: Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes Within 10 Business Days after the consummation of any Collateral resulting in Net Disposition Proceeds in excess sale or other disposition of $500,000 in Property (including the sale or other disposition of Receivables) by the Borrower or any Restricted Subsidiary if the aggregate in any fiscal yearfair market value of the consideration received by the Borrower or its Restricted Subsidiaries for such sale or other disposition, together with the aggregate fair market value of the consideration received by the Borrower or its Restricted Subsidiaries for all other than Inventory in such sales or other dispositions consummated during the Ordinary Course period of twelve consecutive months immediately preceding the consummation of such sale or other disposition, exceeds $25,000,000, the Borrower shall deliver an Officer’s Certificate to the Administrative Agent and the Lenders (notifying the Administrative Agent and the Lenders thereof and certifying the amount of Net Cash Proceeds received from such sales or other dispositions during such period). Unless within 5 Business or Dispositions otherwise permitted under Section 7.1Days after receipt of such Officer’s Certificate the Administrative Agent, Borrowers on behalf of the Required Lenders, shall repay have notified the Advances Borrower of the Required Lenders’ election to forego prepayment, then on the date that is 7 Business Days after the date on which the Borrower shall have delivered such Officer’s Certificate to the Administrative Agent and the Lenders the Borrower shall make a prepayment of the Loans in an amount equal to the Ratable Share of the amount of Net Disposition Cash Proceeds certified in such Officer’s Certificate (or such lesser principal amount as shall then be outstanding), at 100% of the principal amount so prepaid. Notwithstanding the foregoing, (i) up to 100% of the Net Cash Proceeds of such sale, such repayments sales or other dispositions with respect to be made promptly but which the Borrower shall have given the Administrative Agent written notice (set forth in no event more than three the applicable Officer’s Certificate delivered pursuant to the first sentence of this clause (3a)) Business Days following receipt of such net proceeds, and until its intention to repair or replace the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent Property subject to any such sale otherwise prohibited or other disposition or invest such Net Cash Proceeds in the purchase of Property (other than securities, unless those securities represent equity interests in an entity that becomes a Guarantor or an Unrestricted Subsidiary permitted hereunder (and provided that if such Guarantor or Unrestricted Subsidiary is a newly formed Person, such Person shall promptly use the portion of the Net Cash Proceeds received by it for the sale of its equity interests in order to purchase Property to be used by it in its business)) to be used by one or more of the Borrower or the Guarantors in their businesses (such repair, replacement or investment referred to as a “Reinvestment”) within six (6) months following such sale or other disposition, shall not be subject to the provisions of the first two sentences of this clause (a) unless and to the extent that such applicable period shall have expired without such repair, replacement or investment having been made, and (ii) only the Net Cash Proceeds from sales or other dispositions of Property (including the sale or other disposition of Receivables) with a fair market value of the consideration received therefor in excess of $25,000,000 (above and beyond the fair market value of the consideration of the dispositions of the Property with respect to which the Net Cash Proceeds shall have been subject to Reinvestment) shall be subject to the provisions of the first two sentences of this clause (a).
(b) Any prepayments made by the terms and conditions hereof. Such repayments Borrower pursuant to Section 2.12(a) above shall be applied by the Administrative Agent as follows: first to repay Term Loans on a pro rata basis as to each of Term Loan A, Term Loan A-1 and, unless otherwise provided in the Incremental Facility Amendment applicable to the related Incremental Term Loan, each Incremental Term Loan (with the application of such prepayment to be, as to each of Term Loan A, Term Loan A-1 and Incremental Term Loan, to the remaining scheduled principal installments owing in respect of such Term Loan under Section 2.9(c) (or, in the case of Incremental Term Loans, as set forth in the Incremental Facility Amendment applicable to the related Incremental Term Loan) on a pro rata basis (including the final installment due and payable on each such Term Loan)), second, to repay outstanding Swingline Loans and third to repay outstanding Revolving Loans. All prepayments in respect of Revolving Loans required under clause (b) shall be accompanied by a concurrent, automatic, irrevocable reduction and partial termination of the Revolving Commitments in an amount equal to such required prepayment, with such reduction and partial termination allocated ratably among the Lenders in proportion to their respective Pro Rata Share.
(c) If at any time the Revolving Credit Exposure of all Lenders exceeds the lesser of (i) the Aggregate Revolving Commitment and (ii) the Borrowing Base, in each case, then in effect, the Borrower shall immediately repay Revolving Loans in an amount equal to such excess (or, if such excess exceeds $10,000,000, the Ratable Share of such excess), together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.20. Each prepayment shall be applied first to the Base Rate Loans to the full extent thereof, and next to Eurodollar Loans to the full extent thereof. If such excess (or if the excess is greater than $10,000,000, the Ratable Share of such excess) is greater than the outstanding principal amount of the Revolving Loans, the Borrower shall Cash Collateralize its reimbursement obligations with respect to the Letters of Credit by depositing cash collateral in an amount equal to such excess (or, if the excess is greater than $10,000,000, the Ratable Share of the remaining excess) plus any accrued and unpaid fees thereon into a special collateral account pursuant to arrangements satisfactory to the Administrative Agent (the “LC Collateral Account”) at the Payment Office, in the name of the Borrower but under the sole dominion and control of the Administrative Agent, for the benefit of the Lenders and in which the Borrower shall have no interest other than as set forth in Section 8.2. The Borrower hereby pledges, assigns and grants to the Administrative Agent, on behalf of and for the ratable benefit of the Lenders and the Issuing Bank, a Lien in all of the Borrower’s right, title and interest in and to all funds which may from time to time be on deposit in the LC Collateral Account to secure the prompt and complete payment and performance of the Obligations. The Administrative Agent will invest any funds on deposit from time to time in the LC Collateral Account in certificates of deposit of SunTrust Bank having a maturity not exceeding 30 days. The LC Collateral Account shall be administered in accordance with Section 2.22(g) hereof. If, after the date that the Borrower Cash Collateralizes its reimbursement obligations pursuant to this Section, (x) first, to the outstanding principal installments Revolving Credit Exposure of all Lenders is less than the lesser of the Term Loan (i) Aggregate Revolving Commitment and (ii) the Borrowing Base, in the inverse order each case, then in effect, for a period of the maturities thereofat least ten (10) consecutive Business Days, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuingthen exists, such repayments the funds in the LC Collateral Account shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with released by the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Administrative Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentBorrower.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Credit Agreement (Encore Capital Group Inc), Amended and Restated Credit Agreement (Encore Capital Group Inc)
Mandatory Prepayments. (ai) When any Borrower sells No later than the second Business Day following the receipt of Net Proceeds in respect of Extraordinary Receipts in excess of $500,000 in the aggregate for all such Extraordinary Receipts during the term of this Agreement, the Borrowers shall apply an amount equal to 100% of the Net Proceeds received with respect thereto to prepay outstanding Term Loans; provided that no such prepayment shall be required under this clause (i) if the Net Proceeds received are applied, reinvested or otherwise disposes used pursuant to and as contemplated by the Approved Budget (including pursuant to an Approved Budget for a future period).
(ii) No later than the second Business Day following the receipt of Net Proceeds in respect of any Collateral resulting in Prepayment Asset Sale or Net Disposition Insurance/Condemnation Proceeds in excess of $500,000 in the aggregate in for all such proceeds during the term of this Agreement, the Borrowers shall apply an amount equal to 100% of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto to prepay outstanding Term Loans; provided that no such prepayment shall be required under this clause (ii) if the Net Proceeds received are applied, reinvested or otherwise used pursuant to and as contemplated by the Approved Budget (including pursuant to an Approved Budget for a future period).
(iii) If Holdings or any fiscal year, Subsidiary incurs or issues any Indebtedness after the Closing Date (other than Inventory in the Ordinary Course of Business or Dispositions otherwise Indebtedness permitted under Section 7.16.01) or any Capital Stock (other than issuances of Capital Stock of any Subsidiary of the Borrower Agent to any other Subsidiary of the Borrower Agent, or to the Borrower Agent), the Borrowers shall repay apply an amount equal to 100% of all Net Proceeds received therefrom on or prior to the Advances date that is two (2) Business Days after the receipt thereof.
(iv) Notwithstanding any provision under this Section 2.11(b) to the contrary, (A) any amounts that would otherwise be required to be paid by the Borrowers pursuant to Section 2.11(b)(i) or (ii) above shall not be required to be so prepaid to the extent any such Prepayment Asset Sale is consummated by a Foreign Subsidiary or such Net Insurance/Condemnation Proceeds or Extraordinary Receipts are received by a Foreign Subsidiary, as the case may be, for so long as the repatriation to the United States of any such amounts would be prohibited under any Requirement of Law (the Borrower Agent hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions commercially reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds or Net Insurance/Condemnation Proceeds is permitted under the applicable Requirement of Law, such repatriation will be immediately effected and such repatriated Net Proceeds or Net Insurance/Condemnation Proceeds will be promptly (and in any event not later than two (2) Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.11(b) to the extent provided herein; and (B) if the Borrowers or the Subsidiaries determine in good faith that the repatriation to the United States of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(i) or (ii) above would result in materially adverse Tax consequences, taking into account any foreign tax credit or benefit expected to be realized in connection with such repatriation (such amount, a “Restricted Amount”), as reasonably determined by the Borrower Agent, the amount the Borrowers shall be required to mandatorily prepay pursuant to Section 2.11(b)(i) or (ii) above shall be reduced by the Restricted Amount until such time as it may repatriate to the United States such Restricted Amount without incurring such materially adverse Tax liability; provided that, in the case of this clause (B), on or before the date on which any Net Proceeds or Net Insurance/Condemnation Proceeds so retained would otherwise have been required to be applied to prepayments pursuant to this Section 2.11(b), the Borrowers shall apply an amount equal to such Net Proceeds or Net Insurance/Condemnation Proceeds to such prepayments as if such Net Proceeds or Net Insurance/Condemnation Proceeds had been received by the Borrower Agent rather than such Foreign Subsidiary, less the amount of additional Taxes that would have been payable or reserved against it if such Net Proceeds or Net Insurance/Condemnation Proceeds had been repatriated to the United States by such Foreign Subsidiary; provided, further, that to the extent that the repatriation of any Net Proceeds or Net Insurance/Condemnation Proceeds from such Foreign Subsidiary would no longer have a materially adverse Tax consequence, an amount equal to the Net Disposition Proceeds or Net Insurance/Condemnation Proceeds, as applicable, not previously applied pursuant to this immediately preceding clause, shall be promptly applied to the repayment of such salethe Term Loans pursuant to Section 2.11(b) as otherwise required above (without regard to this clause (iv)).
(v) Notwithstanding any of the other provisions of this Section 2.11, such repayments the Required Lenders may elect to waive any mandatory prepayment of Term Loans required to be made promptly but in no event more than three pursuant to clauses (3i) Business Days following receipt and (ii) of such net proceeds, this Section 2.11(b) by providing written notice to the Administrative Agent and until the date of payment, such proceeds Borrower Agent.
(vi) All prepayments under this Section 2.11(b) shall be held accompanied by all accrued and unpaid interest on the amount prepaid and, in trust for Agentthe case of a prepayment of a SOFR Term Loan only, any additional amounts required pursuant to Section 2.16. The foregoing shall not be deemed In addition, each prepayment of Term Loans pursuant to be implied consent to any such sale otherwise prohibited by the terms Section 2.10 and conditions hereof. Such repayments 2.11 shall be applied (x) firstby Administrative Agent, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with Section 2.18(b) unless prior to such prepayment the Administrative Agent receives a certification from the Required Lenders that the one or more of the Orders specifies otherwise, which certification includes a direction from the Required Lenders as to how the Administrative Agent should apply such prepayment.
(vii) Notwithstanding any of the other provisions of this Section 3.2(b)2.11, provided however each Lender may elect not to accept all (but not less than all) of its pro rata percentage of any mandatory prepayment (any such Lender, a “Declining Lender”, and any such declined amounts, the “Declined Amounts”) of Term Loans required to be made pursuant to clauses (i) and (ii) of this Section 2.11(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent no later than 5:00 p.m., New York City time, on the Business Day of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Amounts shall be offered to Lenders that if no Default or Event of Default has occurred are not Declining Lenders on a pro rata basis, and is continuing, such repayments any Declined Amounts remaining thereafter shall be applied to cash collateralize any Obligations related prepay other Indebtedness to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the extent required by the terms hereofthereof as determined by the Borrower Agent and, after giving effect thereto, any remaining amounts may be retained by the Borrower.
(bviii) Notwithstanding The Borrower Agent shall deliver to the foregoingAdministrative Agent, with respect to any Net Disposition Proceeds which would otherwise give rise to a at the time of each prepayment required under this Section 2.20(a2.11(b), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds a certificate signed by a Responsible Officer of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion Borrower Agent setting forth in reasonable detail the calculation of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi)prepayment. Borrowers may request Revolving Advances in Each such certificate shall specify the principal amount of the Net Disposition Proceeds each Borrowing (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount be prepaid. Prepayments shall be released and accompanied by accrued interest on the amount to prepaid. All prepayments of Borrowings under this Section 2.11(b) shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent Section 2.12 and Section 2.16, but shall not otherwise be deemed a waiver of any rights Agent without premium or Lenders may have as a result of the failure by Borrowers to deliver such financial statementspenalty.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Party City Holdco Inc.), Restructuring Support Agreement (Party City Holdco Inc.)
Mandatory Prepayments. (a) When If the Borrower or any Borrower sells of its Subsidiaries shall issue debt securities or otherwise disposes of instruments pursuant to a public offering or private placement (excluding any Collateral resulting Indebtedness incurred in Net Disposition Proceeds in excess of $500,000 in accordance with Section 7.2), then on the aggregate in any fiscal yearnext Business Day following such issuance, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers Term Loans shall repay the Advances in be prepaid by an amount equal to the amount of the Net Disposition Cash Proceeds of such sale, issuance (or such repayments lesser amount to be made promptly but repay the Term Loans in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agentfull). The foregoing shall provisions of this Section do not be deemed to be implied constitute a consent to the incurrence of any such sale otherwise prohibited Indebtedness by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments Borrower or any of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of its Subsidiaries not permitted under Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof7.2.
(b) Notwithstanding If on any date the foregoingBorrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, with unless a Reinvestment Notice shall be delivered in respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a)thereof, so long as no Event of Default shall have occurred and be continuing and then on the Borrowing Agent shall have notified Agent within two (2) next Business Days Day following the receipt of such Net Disposition Proceeds of Cash Proceeds, the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds Term Loans shall be applied prepaid by Agent to the Revolving Advances and Agent shall implement a reserve an amount equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Cash Proceeds (or such portion thereoflesser amount to repay the Term Loans in full); provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to pay a Reinvestment Notice shall not exceed $25,000,000 in any fiscal year of the actual cost of reinvestment Borrower and (ii) on each Reinvestment Prepayment Date the reserve Term Loans shall be prepaid by an amount equal to the Reinvestment Prepayment Amount with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advancethe relevant Reinvestment Event; provided further, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to that one time during the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) term of this Agreement have been satisfied the Borrower shall be entitled, upon notice to the Administrative Agent, to exclude up to $15,000,000 from the prepayment and reinvestment requirements of this clause (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestmentb). The foregoing shall provisions of this Section do not be deemed to be implied constitute a consent to the consummation of any Disposition or other transaction prohibited not permitted by the terms and conditions of this Agreement or any Other DocumentSection 7.5.
(c) Borrowers shall prepay the outstanding amount If, for any fiscal year of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning Borrower commencing with the fiscal year ending December 31, 20222012, payable upon delivery there shall be Excess Cash Flow, then, on the relevant Excess Cash Flow Application Date, the Term Loans shall be prepaid by an amount equal to the ECF Percentage of such Excess Cash Flow (or such lesser amount to repay the Term Loans in full). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five Business Days after the earlier of (i) the date on which the financial statements to Agent of the Borrower referred to in and required by Section 9.7 6.1 (a), for such the fiscal year but in any event not later than one hundred twenty (120) days after the end of each with respect to which such fiscal yearprepayment is made, which amount shall are required to be applied delivered to the outstanding principal installments of Lenders and (ii) the Term Loan in the inverse order of the maturities thereof. In the event that the date such financial statements are not so actually delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, Notwithstanding anything to the outstanding principal installments contrary herein, mandatory prepayments of the Term Loan Loans shall not be required to the extent such prepayment would result in a taxable gain for US Federal income tax purposes at such time to any member of the Borrower as a direct result thereof, with any limitations in the inverse order prepayment being supported by reasonably detailed calculations presented to the Administrative Agent within five Business Days of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, date on which such repayments shall prepayment would otherwise be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofdue.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (National CineMedia, LLC)
Mandatory Prepayments. (a) When If, at any Borrower sells time prior to the Commitment Termination Date, after giving effect to any termination or otherwise disposes reduction of any Collateral resulting in Net Disposition Proceeds in excess the Total Commitment pursuant to the terms of $500,000 in this Agreement, the aggregate in any fiscal yearoutstanding principal amount of all Loans shall exceed the Total Commitment, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers Borrower shall repay immediately prepay the Advances Loans in an aggregate amount equal to the Net Disposition Proceeds lesser of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments amount of the Term Loan in the inverse order of the maturities thereof, Loans and (y) secondsuch excess. Promptly after the Final Maturity Date, or if later, the payment of all Obligations, the Administrative Agent shall return any amount in excess of the Obligations to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b)Borrower, provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofwithout interest.
(b) Notwithstanding the foregoing, with With respect to each prepayment of Loans required by this Section 4.2, the Borrower may designate the Types of Loans which are to be prepaid and the specific Borrowing(s) pursuant to which made; provided that (i) Eurodollar Loans may be designated for prepayment pursuant to this Section 4.2 only on the last day of an Interest Period applicable thereto unless (x) all Loans incurred by the Borrower which are Eurodollar Loans with Interest Periods ending on such date of required prepayment have been paid in full and (y) all Loans incurred by the Borrower which are Base Rate Loans have been paid in full; (ii) if any Net Disposition Proceeds which would otherwise give rise prepayment of Eurodollar Loans made pursuant to a prepayment under Section 2.20(a), so long as no Event of Default single Borrowing shall have occurred and be continuing and reduce the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the outstanding principal amount of such Net Disposition Proceeds pursuant Eurodollar Loans to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the an amount of the Net Disposition Proceeds (or less than $100,000,000, such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount Borrowing shall immediately be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied deemed converted into Base Rate Loans; and (iii) Borrowers agree each prepayment of any Loans made pursuant to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount a Borrowing shall be applied pro rata among such Loans. Notwithstanding anything to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofcontrary contained above, Competitive Bid Loans shall be prepaid pursuant to this Section 4.2(b) only if no other Loans are then outstanding. In the event that absence of a designation by the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make Borrower as described in the prepayment required by second sentence of this Section 2.20(c4.2(b), the Administrative Agent shall, subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver above, make such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent designation in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: 364 Day Credit Agreement (Eastman Kodak Co), Credit Agreement (Eastman Kodak Co)
Mandatory Prepayments. (ai) When any Borrower sells or otherwise disposes If, as of the last day of any Collateral resulting in Net Disposition Proceeds in excess month, (A) the sum of $500,000 in (x) the aggregate outstanding principal balance of the Term Loans on such date, plus (y) the aggregate outstanding principal balance of the LC Obligations on such date, plus (z) the Letter of Credit Usage on such date exceeds (B) the Borrowing Base (such excess being referred to as the "Limiter Excess"), then Borrowers shall, within 3 Business Days thereafter, prepay, without penalty or premium, the outstanding principal amount of the Obligations in accordance with Section 2.4(e) in an aggregate amount equal to the Limiter Excess.
(ii) Immediately upon the receipt by any fiscal year, Loan Party of the proceeds of any voluntary or involuntary sale or disposition by any Loan Party of property or assets constituting Collateral (including casualty losses or condemnations but excluding sales or dispositions which qualify as Permitted Dispositions (other than Inventory in clause (l) of the Ordinary Course definition of Business or Dispositions otherwise permitted under Section 7.1Permitted Dispositions)), Borrowers shall repay prepay the Advances outstanding principal amount of the Obligations in accordance with Section 2.4(e) in an amount equal to 100% of the Net Disposition Cash Proceeds (including condemnation awards and payments in lieu thereof) received by such Person in connection with such sales or dispositions; provided that, so long as (A) no Default or Event of Default shall have occurred and is continuing, (B) Administrative Borrower shall have given Agent prior written notice of Borrowers' intention to apply such monies to the costs of replacement of the properties or assets that are the subject of such salesale or disposition or the cost of purchase or construction of other assets useful in the business of Loan Parties, (C) the monies are held in a cash collateral account in which Agent has a perfected first-priority security interest, and (D) the applicable Loan Party completes such repayments to be made promptly but in no event more than three (3) Business Days following replacement, purchase, or construction within 180 days after the initial receipt of such net proceedsmonies, Loan Parties shall have the option to apply such monies to the costs of replacement of the property or assets that are the subject of such sale or disposition or the costs of purchase or construction of other assets useful in the business of Loan Parties unless and until to the date of paymentextent that such applicable period shall have expired without such replacement, such proceeds purchase or construction being made or completed, in which case, any amounts remaining in the cash collateral account shall be held paid to Agent and applied in trust for Agentaccordance with Section 2.4(e). Nothing contained in this Section 2.4(d)(ii) shall permit Loan Parties to sell or otherwise dispose of any property or assets other than in accordance with Section 6.4.
(iii) Immediately upon the receipt by any Loan Party of any Extraordinary Receipts with respect to Collateral, Borrowers shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(e) in an amount equal to 100% of such Extraordinary Receipts, net of any reasonable expenses incurred in collecting such Extraordinary Receipts.
(iv) Immediately upon the issuance or incurrence by any Loan Party of any Indebtedness (other than Indebtedness permitted under Section 6.1) or the issuance by any Loan Party of any shares of Loan Parties' Stock (other than in the event that any Loan Party forms a Subsidiary in accordance with the terms hereof, the issuance by such Subsidiary of Stock to any such Loan Party), Borrowers shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(e) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such issuance or incurrence. The foregoing provisions of this Section 2.4(d)(iv) shall not be deemed to be implied consent to any such sale issuance or incurrence otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentAgreement.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Credit Agreement (TB Wood's INC), Credit Agreement (Altra Industrial Motion, Inc.)
Mandatory Prepayments. (ai) When Upon the sale, transfer or other disposition by the Borrower or any Borrower sells or otherwise disposes Subsidiary of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate Aircraft, or any Equity Interest in any fiscal year, Aircraft Owning Entity or Owner Participant to a Person other than Inventory any Borrower Group Member or, if the conditions substantially identical to those set forth in Section 6.2(p) have been satisfied, any Section 9.7(a) Entity (including, without limitation, in connection with the Ordinary Course consummation of Business any Capital Markets Transaction or Dispositions otherwise permitted under Section 7.1any other refinancing by the Borrower) (each, Borrowers a “Disposition Event”), the Borrower shall repay forthwith deposit into the Advances in Collection Account an amount equal to the Net net proceeds from such Disposition Proceeds Event (together with all amounts maintained in the Supplemental Rent Account and the Security Deposit Account attributable to such Aircraft or Equity Interest, that are not payable to the applicable Lessee or seller of such saleAircraft or Equity Interest), such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments which amounts shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions Flow of Section 3.2(b), provided however that if no Default or Funds on the next Payment Date after such Disposition Event. Upon the occurrence of an Event of Default has occurred Loss with respect to any Aircraft, the Borrower shall, upon the receipt of any insurance, condemnation or other proceeds (including any Lessee or other third party payments and is continuing, all amounts maintained in the Supplemental Rent Account and the Security Deposit Account attributable to such repayments shall Aircraft that are not required to be applied returned to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances the applicable Lessee in accordance with the terms hereofof the Lease) in respect of such Event of Loss, deposit into the Collection Account an amount equal to the then Allocable Advance Amount of such Aircraft (determined as of the date of such Event of Loss), which amount shall be applied in accordance with the Flow of Funds on the next Payment Date after such deposit.
(bii) Notwithstanding If there is a Borrowing Base Deficiency as of any Payment Date, the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default Borrower shall have occurred and be continuing and prepay on such Payment Date the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied Outstanding Principal Amount by Agent to the Revolving Advances and Agent shall implement a reserve an amount equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect Borrowing Base Deficiency by deposit to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal yearCollection Account, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with the Flow of Funds.
(iii) If there is a Borrowing Base Deficiency as of any Report Date, the Borrower shall prepay on the Payment Date immediately succeeding such Report Date the Outstanding Principal Amount by an amount equal to the amount of such Borrowing Base Deficiency by deposit to the Collection Account, which amounts shall be applied in accordance with the Flow of Funds.
(iv) If the LTV Maintenance Test shall not be satisfied in connection with a Disposition Event or an Event of Loss, the Borrower shall prepay, on the Payment Date specified in Section 6.64.2(b)(i) with respect to such Disposition Event or Event of Loss, as the case may be, the Outstanding Principal Amount by an amount equal to the amount by which the Outstanding Principal Amount is required to be reduced in order for the LTV Maintenance Test to be satisfied, by deposit of such amount into the Collection Account. Any amounts prepaid in accordance with this clause (iv) shall be applied in accordance with the Flow of Funds.
(v) The Borrower shall give at least four (4) Business’ Day’s prior written notice of any prepayment pursuant to this Section 4.2(b) to the Administrative Agent, which notice shall be irrevocable.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Genesis Lease LTD)
Mandatory Prepayments. (a) When any Borrower sells Asset Sales, Hedge Receipts and Casualty Events.
(i) Other than with respect to Net Asset Sale Proceeds attributable to an Asset Sale permitted by Section 9.11(a) or otherwise disposes Section 9.11(c), to the extent that the aggregate Cash consideration in respect of any Collateral resulting in Net Disposition Proceeds Asset Sale(s), Hedge Termination(s) and/or Casualty Event(s) is equal to or in excess of $500,000 1,000,000 in any transaction or series of related transactions or $1,500,000 in the aggregate in any fiscal yearduring the term of this Agreement, other than Inventory the Issuer will (at its option) apply such Net Asset Sale Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds (or, in the Ordinary Course case of Business clause (C) elect to apply such Net Asset Sale Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds) to one or Dispositions otherwise permitted more of the following options within 10 days from the later of the date of such Asset Sale(s), Hedge Termination(s) and/or Casualty Event or the receipt of such Net Asset Sale Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds:
(A) to prepay Loans (as defined in the First Lien Credit Agreement or any functionally equivalent term in a Permitted Revolver Refinancing First Lien Credit Agreement); provided that in connection with any such prepayment of Loans under Section 7.1the First Lien Credit Agreement or Permitted Revolver Refinancing First Lien Credit Agreement, Borrowers shall repay the Advances in Issuer will cause the related maximum aggregate credit amount, Borrowing Base, and commitments under the First Lien Credit Agreement or Permitted Revolver Refinancing First Lien Credit Agreement, as applicable, to be permanently reduced by an amount equal to the Net Disposition Proceeds principal amount so retired (for the avoidance of doubt and notwithstanding anything herein to the contrary, these provisions will not prohibit the Issuer and the Note Parties from increasing the maximum aggregate credit amounts, Borrowing Base and commitments under the First Lien Credit Agreement or Permitted Revolver Refinancing First Lien Credit Agreement at a later date); provided, further, that nothing will restrict the Issuer from temporarily prepaying Loans under the First Lien Credit Agreement or Permitted Revolver Refinancing First Lien Credit Agreement pending application of such sale, such repayments amounts pursuant to be made promptly but in no event more than three this Section 3.04(a)(i);
(3B) Business Days following receipt of such net proceeds, and until to offer to prepay the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the Notes outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit under this Agreement in accordance with the provisions of Section 3.2(b3.04(a)(ii), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.;
(bC) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have has occurred or is continuing at any time from the date of election to the date of reinvestment, to elect to invest in Oil and be continuing Gas Properties (including drilling and completion costs of existing Oil and Gas Properties) and make such investments, in each case, to the Borrowing Agent shall have notified Agent extent permitted under Section 9.05(k), within two (2180 days from the later of the date of such Asset Sale(s), Hedge Termination(s) Business Days following and/or Casualty Event or the receipt of such Net Disposition Asset Sale Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds; provided that (1) Net Asset Sale Proceeds, Hedge Receipts and Net Insurance/Condemnation Proceeds attributable to Collateral may only be invested in assets that are or will become Collateral and any such assets with a fair market value in excess of $2,000,000 must become Collateral concurrently with the acquisition thereof, (2) until such time as the Net Asset Sale Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds are so reinvested, such amounts shall be maintained in a deposit account subject to an Account Control Agreement or used to temporarily prepay Loans under the First Lien Credit Agreement or Permitted Revolver Refinancing First Lien Credit Agreement, and (3) promptly following any determination by the Issuer of an election to invest Net Asset Sale Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds pursuant to this Section 3.04(a)(i)(C), the Issuer shall, (x) prior to the initial reinvestment using such Net Asset Sale Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds and (y) at the time of such reinvestment, deliver to the Agent (for delivery to the Holders) a certificate of a Responsible Officer of the Issuer specifying that the Issuer intends to reinvest such Net Asset Sale Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds and, in each case, certifying that such reinvestment is otherwise permitted under Section 9.05(k); and/or
(D) to elect to redeem (concurrently with the delivery of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied notice by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve RRI with respect to such amount shall be released and shall be available to Borrowers as its Series B Redeemable Preferred Stock) all or a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release portion of the reserve for Issuer Series B Preferred Units and substantially contemporaneously therewith an equivalent amount of Series B Redeemable Preferred Stock of RRI in accordance with the RRI Certificate of Designations no later than twenty-five (25) days after such amount) to cause election if, and only if, at such Revolving Advances to be made, time the Series B Redeemable Preferred Stock of RRI is owned in whole or in part by EIG.
(ii) all conditions to funding sent forth in Any Net Asset Sale Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds from Asset Sale(s), Hedge Termination(s) and/or Casualty Event that are not applied or invested as required by Section 8.2 or 8.3 (as applicable3.04(a)(i) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not will be deemed to be implied consent constitute “Excess Proceeds”. On or before, (x) the 10th day referenced in Section 3.04(a)(i), in the case of Section 3.04(a)(i)(A), 3.04(a)(i)(B) and 3.04(a)(i)(D), and (y) the 180th day in the case of Section 3.04(a)(i)(C), if the Issuer has not earlier made an offer to any Disposition or other transaction prohibited by prepay under Section 3.04(a)(i)(B), the terms Issuer shall make an offer (a “Specified Offer”) in accordance with Sections 3.04(d) and conditions of this Agreement or any Other Document.
(c3.04(e) Borrowers shall to all the Holders to prepay the outstanding maximum principal amount of Notes that may be prepaid out of the Term Loans Excess Proceeds, at an offer price in cash in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery 100% of the financial statements to Agent referred to in principal amount of the Notes plus other than on account of a prepayment with Net Insurance/Condemnation Proceeds, the Make-Whole Amount and/or Repayment Fee, as applicable, plus accrued and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied unpaid interest to the outstanding principal installments date of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so deliveredpurchase, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions procedures established by the Agent for such offer. To the extent that the aggregate amount of Section 3.2(b), provided however that if no Default Notes so validly offered for prepayment or Event of Default has occurred tendered and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than not properly withdrawn pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied Specified Offer in accordance with Section 6.63.04(e) is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for working capital and general corporate purposes and to repay any other Debt, subject to the other covenants contained in this Agreement. If the aggregate principal amount of Notes offered for prepayment or surrendered by the Holders, collectively, exceeds the amount of Excess Proceeds, the Agent shall select the Notes to be prepaid or purchased on a pro rata basis based on the aggregate principal amount of tendered Notes. Upon completion of the Specified Offer, the amount of Excess Proceeds will be reset at zero. The Issuer shall make each offer for prepayment under this Section 3.04 in accordance with Section 3.04(d) and Section 3.06.
(b) [Reserved].
Appears in 2 contracts
Samples: Note Purchase Agreement (Rosehill Resources Inc.), Note Purchase Agreement (Rosehill Resources Inc.)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes Within (i) ten Business Days following the date of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, involving a Mortgaged Vessel (other than Inventory in a Collateral Disposition constituting an Event of Loss) and (ii) the Ordinary Course earlier of Business (A) the date which is 180 days following any Collateral Disposition constituting an Event of Loss involving a Mortgaged Vessel and (B) the date of receipt by Borrower, any of its Subsidiaries or Dispositions otherwise permitted under Section 7.1the Administrative Agent of the insurance proceeds relating to such Event of Loss, Borrowers Borrower shall be required to repay the Advances Loans in an amount equal to the Net Disposition Proceeds product of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments sum of the Term Loan in then outstanding aggregate principal amount of Indebtedness under the inverse order of Senior Credit Facilities and the maturities thereof, Loans and (y) second, a fraction (A) the numerator of which is equal to the remaining Advances appraised value (including cash collateralization as determined in accordance with the most recent report delivered to the Administrative Agent (or obtained by the Administrative Agent) pursuant to Section 8.01(c) of all Obligations relating the Mortgaged Vessel or Mortgaged Vessels which is/are the subject of such Collateral Disposition and (B) the denominator of which is equal to the Aggregate Mortgaged Vessel Value (as determined in accordance with the most recent appraisal report delivered to the Administrative Agent (or obtained by the Administrative Agent) pursuant to Section 8.01(c) before giving effect to such Collateral Disposition); provided that (I) the foregoing payment shall be reduced by the amount of any outstanding Letters mandatory prepayment made under the Senior Credit Facilities with respect to such Collateral Disposition and (II) if prior to the date on which payment is due hereunder, the Borrower provides the Administrative Agent with written notice of its intent to consummate a Vessel Exchange with the proceeds, then so long as no Default or Event of Default is continuing, the Credit Parties may use the funds received in such Collateral Disposition in accordance with the provisions of Section 3.2(b9.02(a), provided however that further that, if no a Default or Event of Default has occurred occurs after the date of such Collateral Disposition and is continuingbefore the procedures set forth in Section 9.02(a) are completed, the Parent shall apply the proceeds of such Collateral Disposition in accordance with Section 4.02(a); provided further, that to the extent excess proceeds remain after any Vessel Exchange, such repayments excess shall be applied first to cash collateralize any Obligations related repay the Senior Credit Facilities and second to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with repay the terms hereofLoans.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful anything to the business of the Loan Parties and their Subsidiariescontrary contained elsewhere in this Agreement, all then such Net Disposition Proceeds outstanding Loans shall be applied by Agent to repaid in full on the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentMaturity Date.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Credit Agreement (Oaktree Capital Management Lp), Credit Agreement (General Maritime Corp / MI)
Mandatory Prepayments. If at any time the amount equal to the sum of (ai) When any Borrower sells or otherwise disposes the outstanding principal amount of any Collateral resulting in Net Disposition Proceeds in excess all Revolving Credit Loan Advances and the Swing Loan Advances, plus (ii) the Letter of $500,000 in Credit Liabilities, exceeds the aggregate in any fiscal yearamount of the Revolving Credit Commitments, the Borrower shall promptly prepay Revolving Credit Loan Advances, Swing Loan Advances and the Letter of Credit Disbursements by the amount of the excess or, if no Revolving Credit Loan Advances, Swing Loan Advances or Letter of Credit Disbursements are outstanding, the Borrower shall immediately pledge to the Agent cash or Cash Equivalent Investments (subject to no other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Liens) in an amount equal to the excess as security for the Obligations. Any such mandatory prepayments shall be applied first to Swing Loan Advances, then to Letter of Credit Disbursements for which the Issuing Bank has not been reimbursed by the Borrower, then to Base Rate Advances under the Revolving Credit Loan, then to Eurodollar Advances under the Revolving Credit Loan, and then to the remaining Letter of Credit Liabilities. Any prepayments hereunder shall be accompanied with accrued and unpaid interest on the amount prepaid to the date of prepayment. After any reduction in the Commitments pursuant to Section 2.11, the Borrower shall promptly prepay the outstanding Revolving Credit Loan Advances and Swing Loan Advances by the amount which the sum of the outstanding principal amount of the Advances under the Revolving Credit Loan and the Swing Loan plus the Letter of Credit Liabilities exceeds the aggregate amount of the Revolving Credit Commitments, as reduced. Upon the Disposition of any assets (other than Dispositions of assets permitted under Sections 9.8(a) and (c)), the Borrower shall promptly prepay the Advances by an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), Disposition; provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoinghowever, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment Dispositions permitted under Section 2.20(aSections 9.8(b) and (d), so long as no Event of Default the Borrower shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall promptly prepay the outstanding amount of the Term Loans in Advances by an amount equal to twenty-five percent (25%) the Net Proceeds of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied Disposition to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver extent such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers exceeds either (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 1,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, Disposition or (ii) as a result of any taking or condemnation of any assets or property $3,000,000 in the aggregate for all Dispositions which have occurred since the date hereof. Any such mandatory prepayments shall be applied in accordance first to Swing Loan Advances, then to Letter of Credit Disbursements for which the Issuing Bank has not been reimbursed by the Borrower, then to the Base Rate Advances under the Revolving Credit Loan, then to Eurodollar Advances under the Revolving Credit Loan, and then to the remaining Letter of Credit Liabilities. Any prepayments hereunder shall be accompanied with Section 6.6accrued and unpaid interest on the amount prepaid to the date of prepayment.
Appears in 2 contracts
Samples: Credit Agreement (Ezcorp Inc), Credit Agreement (Ezcorp Inc)
Mandatory Prepayments. (a) When Without duplication of Section 2.12(b), if any Borrower sells or otherwise disposes Indebtedness shall be incurred by any Group Member which constitutes a Junior Debt Incurrence Event, an amount equal to 50% of any Collateral resulting in Net Disposition Proceeds in excess the cash proceeds (net of $500,000 in (i) costs and fees associated with derivative transactions (including, without limitation, hedging transactions), the aggregate amount of share repurchases made with the proceeds of such Junior Debt Incurrence Event and permitted by Section 7.6(k), attorneys’ fees, accountants’ fees, investment banking fees, underwriting discounts and commissions and other customary costs, fees and expenses actually incurred in connection therewith and net of taxes paid and the Borrower’s reasonable and good faith estimate of income, franchise, sales, and other applicable taxes required to be paid by any fiscal yearGroup Member in connection with such Junior Debt Incurrence Event and (ii) other amounts reasonably acceptable to the Administrative Agent) thereof shall be applied on the date of such incurrence toward the prepayment of the Term Loans and other amounts as set forth in Section 2.12(e).
(b) Without duplication of Section 2.12(a), if any Indebtedness shall be incurred by any Group Member (excluding any Indebtedness incurred in accordance with Section 7.2 (other than Inventory Credit Agreement Refinancing Indebtedness)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence toward the prepayment of the Term Loans and other amounts as set forth in Section 2.12(e).
(c) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered within three Business Days after receipt thereof, such Net Cash Proceeds shall be applied after such third Business Day toward the Ordinary Course prepayment of Business or Dispositions otherwise permitted under the Loans and other amounts as set forth in Section 7.12.12(e); provided that notwithstanding the foregoing, Borrowers shall repay the Advances in on each Reinvestment Prepayment Date, an amount equal to the Net Disposition Proceeds Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Loans and other amounts as set forth in Section 2.12(e).
(d) If, for any fiscal year of the Borrower commencing after the end of the fiscal year ending December 31, 2021, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the difference of 50% of such saleExcess Cash Flow minus the aggregate amount of any voluntary prepayments (including Discounted Prepayments made pursuant to Section 2.29 and assignments to Holdings, the Borrower or any Subsidiary made pursuant to Section 10.6(h), with the amount of such repayments prepayment being equal to the amount actually paid by the Borrower (or Holdings or any Subsidiary, as applicable); provided, that, with respect to the open market purchase made pursuant to Section 10.6(h)(i) on the Third Amendment Effective Date, Excess Cash Flow shall not be reduced by the portion of such open market purchase funded with the proceeds of the Third Amendment Term Loan) of the Term Loans or to the extent the Revolving Commitment is permanently reduced by an amount equal to such payment, any voluntary prepayments of the Revolving Loans, made during such year; provided that such percentage shall be reduced to (i) 25% if the Consolidated Net Leverage Ratio as of the last day of such fiscal year is less than or equal to 3.00 to 1.00 but greater than 2.00 to 1.00 and (ii) 0% if the Consolidated Net Leverage Ratio as of the last day of such fiscal year is less than or equal to 2.00 to 1.00. Each such prepayment shall be made on a date (each an “Excess Cash Flow Application Date”) occurring no later than the earliest of three Business Days after (i) the date on which the financial statements of Holdings referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders, and (ii) the date such financial statements are actually delivered.
(e) Amounts to be applied in connection with prepayments made promptly but pursuant to (i) this Section 2.12 (other than Section 2.12(a)) shall be applied to the prepayment of installments due in respect of the Term Loans in direct order of maturity for the next four scheduled payments of Term Loans required under Section 2.3, and then ratably to the remaining scheduled installments due in respect of the Term Loans in accordance with Sections 2.3 and 2.18(b); and (ii) Section 2.12(a) shall be applied to the prepayment of installments due in respect of the Term Loans in inverse order of maturity (including to the bullet payment on the Term Loan Maturity Date); provided that any Term Lender may decline any such prepayment made pursuant to this Section 2.12 (other than any prepayment made with the proceeds of Credit Agreement Refinancing Indebtedness) (the aggregate amount of all such prepayments declined in connection with any particular prepayment, collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed first, to the prepayment, on a pro rata basis, of the Term Loans held by Term Lenders that have elected to accept such Declined Amounts; second, to the extent of any residual, if no Term Loans remain outstanding, to the prepayment of the Revolving Loans in accordance with Section 2.15(c) (with no corresponding permanent reduction in the Revolving Commitments); third, to the extent of any residual, if no Term Loans or Revolving Loans remain outstanding, to the deposit of an amount in cash (in an amount not to exceed 105% of the then existing L/C Exposure) in a cash collateral account for the benefit of the L/C Lenders on terms and conditions satisfactory to the Issuing Lender; and fourth, to the extent of any residual, retained by the Borrower. Each prepayment of the Loans under this Section 2.12 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans, in the event more all Revolving Commitments have not been terminated) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. The Borrower shall deliver to the Administrative Agent and each Term Lender notice of each prepayment of Term Loans in whole or in part pursuant to this Section 2.12 not less than three (3) Business Days following receipt prior to the date such prepayment shall be made (each, a “Mandatory Prepayment Date”). Such notice shall set forth (i) the Mandatory Prepayment Date, (ii) the aggregate amount of such net proceeds, prepayment and until (iii) the date options of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed each Term Lender to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments decline or accept its share of the Term Loan in the inverse order of the maturities thereof, such prepayment and (y) secondto accept Declined Amounts. Any Term Lender that wishes to exercise its option to decline such prepayment or to accept Declined Amounts shall notify the Administrative Agent by facsimile not later than one (1) Business Day prior to the Mandatory Prepayment Date.
(f) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.12, a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment or reduction.
(g) No prepayment fee or other penalty or premium shall be payable in respect of any mandatory prepayments made pursuant to this Section 2.12.
(h) Notwithstanding any provisions of this Section 2.12 to the contrary, to the remaining Advances extent the Borrower determines, acting in good faith, that any repatriation or distribution (including cash collateralization or deemed repatriation or deemed distribution for tax purposes) to the Borrower of all Obligations relating Net Cash Proceeds or Excess Cash Flow described in this Section 2.12 that are attributable to any outstanding Letters Subsidiary would reasonably be expected to result in material adverse Tax consequences to any Group Member (as determined by the Borrower in good faith), or would be prohibited or restricted by applicable Requirements of Credit Law, or applicable Operating Documents or material agreements of such Subsidiary, the applicable Net Cash Proceeds or Excess Cash Flow shall not be required to be so repatriated or distributed and the relevant amounts shall not be required to be prepaid in accordance with this Section 2.12. To the provisions extent that the relevant adverse Tax consequences, restrictions imposed by Requirements of Law or restrictions set forth in the applicable Operating Documents or material agreements, in each case, would no longer be applicable at any time in the twelve (12) month period following the day that the relevant amounts would otherwise be required to be prepaid pursuant to this Section 3.2(b)2.12, provided however the Borrower shall cause such amounts to be prepaid as and to the extent otherwise required pursuant to this Section 2.12. The Borrower will use commercially reasonable efforts to avoid or mitigate any material adverse Tax consequences, restrictions imposed by Requirements of Law and restrictions set forth in the applicable Operating Documents or material agreements, in each case, that if no Default or Event would otherwise limit an obligation of Default has occurred and is continuing, such repayments shall be applied the Borrower to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances make a mandatory prepayment in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentSection 2.12.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Credit Agreement (Ribbon Communications Inc.), Credit Agreement (Ribbon Communications Inc.)
Mandatory Prepayments. (a) When Within 5 Business Days of receipt by a Borrower or any Restricted Subsidiary of proceeds of any sale or disposition by such Borrower sells or otherwise disposes such Restricted Subsidiary of any of their assets, or receipt of proceeds of any casualty or condemnation loss of any Collateral resulting or other assets of any Borrower or any Restricted Subsidiary (excluding (i) sales permitted by Section 7.6(b), Section 7.6(c), Section 7.6(d), Section 7.6(f), Section 7.6(g) and Section 7.6(h), (ii) sales of assets the proceeds of which are reinvested in Net Disposition Proceeds in excess assets of $500,000 a kind then used or useful in the aggregate business of the Borrowers and their Restricted Subsidiaries within 180 days after such assets are sold or disposed of; provided, however, that the proceeds from the sale of any Subsidiary, line of business, fixed assets or operating assets shall not be reinvested in any fiscal year, Permitted Investments (other than Inventory Permitted Investments that are acquired in connection with a Permitted Acquisition)), the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay prepay the Advances Loans in an amount equal to the Net Disposition Proceeds all such proceeds, net of (i) commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such saletransaction and payable by such Borrower in connection therewith (in each case, such repayments paid to non-Affiliates) and (ii) Taxes paid or reasonably estimated to be made promptly but in no event more than three payable as a result thereof (3after taking into account any tax sharing arrangements) Business Days following receipt of such net proceedsand, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent with respect to any such sale otherwise prohibited proceeds received by a Foreign Subsidiary, the terms and conditions hereof. Such repayments shall amount of any Taxes that are reasonably estimated to be applied (x) first, to the outstanding principal installments payable by any applicable Affiliate as a result of the Term Loan in the inverse order repatriation of the maturities thereofsuch proceeds; provided, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if so long as no Default or Event of Default has occurred and is continuing, such repayments net proceeds in an amount of up to $1,000,000 in any Fiscal Year shall not be required to prepay the Loans. Any such prepayment under this clause (a) shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofparagraph (c) below.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all If either Borrower or any portion of such Net Disposition Proceeds in fixed their Restricted Subsidiaries issues any debt or capital assets or equity securities (other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as than (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be madeIndebtedness permitted under Section 7.1, (ii) equity securities issued by a Borrower or a Restricted Subsidiary of the Borrowers as all conditions or a portion of the consideration to funding sent forth be paid in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and connection with a Permitted Acquisition, (iii) Borrowers agree proceeds from the issuance of equity securities that are applied to use the repayment of the Fortegra Preferred Stock and Indebtedness outstanding under the Subordinated Debenture Purchase Agreement, (iv) equity securities issued to Summit Partners its Affiliates, or other Persons co-investing in Fortegra with Summit Partners, and (v) equity issued to senior management of the Borrowers), then no later than the fifth Business Day following the date of receipt of the proceeds of thereof, the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twentythe Mandatory Prepayment Percentage of all such proceeds, net of (x) underwriting discounts and commissions and other reasonable costs paid to non-five percent Affiliates in connection therewith and (25%y) of Excess Cash Flow for each fiscal year beginning with respect to any such proceeds received by a Foreign Subsidiary, the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have Taxes that are reasonably estimated to be payable by any applicable Affiliate as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) repatriation of such cash proceeds in the case of proceeds. Any such incurrence or issuance of Indebtedness. Such repayments will be applied prepayment under this clause (xb) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.62.10(c).
(c) Any prepayments made by the Borrowers pursuant to Section 2.10(a) or (b) above shall be applied by the Administrative Agent as follows: first, to Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents; second, to all other fees and reimbursable expenses of the Lenders then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders based on their respective Pro Rata Shares of such fees and expenses; third, to interest then due and payable on the Loans made to Borrowers, pro rata to the Lenders based on their respective Revolving Commitments; and fourth, to the principal balance of the Loans, until the same shall have been paid in full, pro rata to the Lenders based on their respective Revolving Commitments. The Revolving Commitments of the Lenders shall not be permanently reduced by the amount of any prepayments made pursuant to this subsection (c).
(d) If at any time the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to Section 2.6 or otherwise, the Borrower shall immediately repay Revolving Loans in an amount equal to such excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.17. Each prepayment shall be applied first to the Base Rate Loans to the full extent thereof, and second to Eurodollar Loans to the full extent thereof.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Fortegra Financial Corp), Revolving Credit Agreement (Fortegra Financial Corp)
Mandatory Prepayments. (a) When If at any Borrower sells or otherwise disposes time the sum of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal yearOutstanding Revolving Credit Loans, other than Inventory in Outstanding Swing Loans, Outstanding Bid Loans and the Ordinary Course aggregate Letter of Business or Dispositions otherwise permitted under Section 7.1Credit Liabilities exceeds the Total Revolving Credit Commitment, Borrowers shall repay then the Advances in an amount equal to the Net Disposition Proceeds of such saleBorrower shall, such repayments to be made promptly but in no event more than three within five (35) Business Days following receipt of such net proceedsoccurrence pay the amount of such excess to the Agent for the respective accounts of the Revolving Credit Lenders, and until as applicable, for application to the date Revolving Credit Loans as provided in §3.4, together with any additional amounts payable pursuant to §4.8, except that the amount of payment, such proceeds any Swing Loans shall be held in trust for Agent. The foregoing shall not be deemed paid solely to be implied consent to the Swing Loan Lender and the amount of any such sale otherwise prohibited by the terms and conditions hereof. Such repayments Bid Loan shall be applied (x) first, paid solely to the outstanding principal installments of the Term applicable Bid Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofLender.
(b) Notwithstanding If at any time the foregoingsum of the aggregate Outstanding Revolving Credit Loans, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a)Outstanding Swing Loans, so long as no Event of Default shall have occurred and be continuing Outstanding Bid Loans, Outstanding Term Loans and the Borrowing Agent shall have notified Agent aggregate Letter of Credit Liabilities exceeds (i) the Total Commitment, or (ii) the Unencumbered Asset Pool Availability, then the Borrower shall, within two five (25) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to occurrence pay the amount of such Net Disposition Proceeds excess to the Agent for the respective accounts of the Lenders, as applicable, for applications to the Loans as provided in §3.4, together with any additional amounts payable pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in §4.8, except that the amount of any Swing Loans shall be paid solely to the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment Swing Loan Lender and the reserve with respect to such amount of any Bid Loan shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect paid solely to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Documentapplicable Bid Loan Lender.
(c) Borrowers shall prepay If at any time the sum of the aggregate outstanding principal amount of the Term Bid Loans in an exceeds the Bid Loan Sublimit, then Borrower shall, within five (5) Business Days of such occurrence pay the amount equal of such excess to twenty-five percent (25%) of Excess Cash Flow the Agent for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery respective accounts of the financial statements to Agent referred to in and required by Section 9.7 Bid Loan Lenders, as applicable, for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied application to the outstanding principal installments of the Term Loan Bid Loans as provided in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered§3.4, then a calculation based upon estimated together with any additional amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject payable pursuant to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements§4.8.
(d) In If at any time the event sum of any issuance or other incurrence the aggregate Outstanding U.S. Dollar Revolving Credit Loans, Outstanding Swing Loans, Outstanding Bid Loans and the aggregate Letter of Indebtedness (other than Permitted Indebtedness) by BorrowersCredit Liabilities exceeds the Total U.S. Dollar Revolving Credit Commitment, Borrowers then the Borrower shall, no later than three within five (35) Business Days after of such occurrence pay the receipt by Borrowers amount of such excess to the Agent for the respective accounts of the cash proceeds from any such issuance or incurrence of IndebtednessU.S. Dollar Revolving Credit Lenders, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) firstas applicable, for applications to the outstanding principal installments of the Term Loan U.S. Dollar Revolving Credit Loans as provided in the inverse order of the maturities thereof and (y) second§3.4, together with any additional amounts payable pursuant to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof§4.8.
(e) Other than pursuant to If at any issuance time the sum of Equity Interests Dollar Equivalent of Borrowers the aggregate Outstanding Alternative Currency/Dollar Revolving Credit Loans exceeds 105% of the Total Alternative Currency/U.S. Dollar Revolving Credit Commitment, then the Borrower shall, within five (i5) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice Business Days of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request occurrence pay an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is aggregate amount equal to the Term Loan Collateral Amount and (y) second, amount by which the aggregate Outstanding Alternative Currency/Dollar Revolving Credit Loans exceeds the Total Alternative Currency/U.S. Dollar Revolving Credit Commitment to the remaining Advances (including cash collateralization Agent for the respective accounts of all Obligations relating the Alternative Currency/Dollar Revolving Credit Lenders as provided in §3.4, together with any additional amounts payable pursuant to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof§4.8.
(f) All proceeds received by Borrowers or Agent (iFor purposes of determining compliance with §3.2(a), §3.2(b), §3.2(e) under any insurance policy on account , the Outstanding amount of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property the Alternative Currency/Dollar Revolving Credit Loans which are denominated in Alternative Currencies shall be applied in accordance with Section 6.6.re-determined on the Revaluation Date occurring on the last calendar day of each calendar quarter prior to the Revolving Credit Maturity Date based on the Dollar Equivalent of the aggregate outstanding principal amount of such Alternative Currency/Dollar Revolving Credit Loans (determined as of such day prior to 11:00 a.m.
Appears in 2 contracts
Samples: Credit Agreement (QTS Realty Trust, Inc.), Credit Agreement (QTS Realty Trust, Inc.)
Mandatory Prepayments. Borrower shall be required to make mandatory prepayments of the Term Loans upon each of the following:
(ai) When the receipt by Borrower or any Borrower sells or otherwise disposes of its Affiliates of any Collateral resulting damages or other amounts from Equipment Supplier under the Equipment Supply Agreement (including as a result of a delayed delivery pursuant to Section 4 of the Equipment Supply Agreement and as a result of any cancellation by Equipment Supplier pursuant to Section 19 of the Equipment Supply Agreement), in Net Disposition Proceeds an amount equal to (A) during the continuance of any Default or Event of Default, the amount of such damages or other amounts, or (B) so long as there is not continuing any Default or Event of Default, such portion of the amount of such damages as Hermes Agent (at the instruction of Hermes) shall designate in excess writing as the amount (if any) of $500,000 the Term Loans no longer eligible for coverage under the Hermes Export Credit Guarantee Documents as a result of such payment of amounts by Equipment Supplier to Borrower;
(ii) any failure of the Hermes Export Credit Guarantee Documents to be effective with respect to any portion of the Term Loans, in an amount equal to such portion of the aggregate in Term Loans; and
(iii) the refund to Borrower of any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Hermes Guarantee Fees by Hermes in an amount equal to the Net Disposition Proceeds Hermes Guarantee Fee Refund. Any such prepayment (including any deemed prepayment with the Hermes Guarantee Fee Refund made in accordance with 2.6.1) shall (A) include payment by Borrower of accrued and unpaid interest on the Term Loans being prepaid and any fees, breakage costs and other charges payable in connection with such salea prepayment under the terms of this Agreement (including Section 3.7), such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceedsif any, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall (B) be applied to remaining amortization payments and the payments at final maturity thereof (x1) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default maturity or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt on a pro rata basis, at the option of such Net Disposition Proceeds Hermes Agent (acting at the instruction of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(viHermes). Borrowers Amounts prepaid as mandatory prepayments of Term Loans may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Documentre-borrowed.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Credit Agreement (Foresight Energy LP), Credit Agreement (Foresight Energy Partners LP)
Mandatory Prepayments. (a) When any The Borrower sells or otherwise disposes of any Collateral resulting shall prepay the Notes in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount amounts equal to the Net Disposition Proceeds amounts required pursuant to Section 7.05; provided that notwithstanding the foregoing, the Borrower shall not be required to make such payment to the extent such payment is prohibited pursuant to the terms of such sale, such repayments to the First Lien Credit Agreement. Such prepayment shall be made promptly but in no event more later than three (3) the next Business Days following Day after the receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order Disposition of the maturities thereof, such Oil and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofGas Properties.
(b) Notwithstanding The Borrower shall prepay the foregoing, with respect Notes in amounts equal to 100% of the Net Cash Proceeds of any Net Disposition Proceeds which would otherwise give rise Casualty Event related to a the Borrower or any of its Subsidiaries. Such prepayment under Section 2.20(a), so long as shall be made no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) later than 20 Business Days following after the receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Documentproceeds.
(c) Borrowers shall prepay Notwithstanding anything herein to the outstanding amount contrary, if any of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent amounts referred to in Section 2.04(b) will otherwise be reinvested (including for actual repair and required by Section 9.7 for such fiscal year but replacement following a Casualty Event) in any event not later than one hundred twenty (120) assets used or useful in carrying on the business of the Borrower and its Subsidiaries within 90 days after the end of each such fiscal yearreceipt thereof, which amount then prepayment shall only be applied required to the outstanding principal installments extent any excess Net Cash Proceeds remain after making such reinvestment during such 90-day period. If the Borrower plans such reinvestment with the Net Cash Proceeds described in Section 2.04(b), then it shall deliver and certify such intention in a certificate from the Financial Officer of the Term Loan in Borrower to the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Administrative Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) 20 Business Days after the receipt by Borrowers of such Net Cash Proceeds. Any of the cash proceeds from any Net Cash Proceeds remaining after such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) 90-day period, may request an appraisal the completion of Equipment and Real Property to determine if such repair or replacement or after the then outstanding balance Borrower has discontinued its good faith pursuit of such repairs or replacement will be promptly applied as a prepayment of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofLoans.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Royal Resources Partners LP), Second Lien Credit Agreement (Royal Resources Partners LP)
Mandatory Prepayments. If, at any time, the Asset Coverage Ratio as stated on the most recent Valuation Statement delivered to Agent in accordance with Section 5(b)(ii) is less than 200%, the Borrower shall, within ten (a10) When any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in Business Days following the aggregate in any fiscal yeardate such Valuation Statement is required to be delivered, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances outstanding Loans until the Asset Coverage Ratio after such payments exceeds 200%. The Borrower will give written notice to the Agent at least ten (10) days prior to the occurrence of a Change of Control, which notice shall (A) state the expected effective date of such Change of Control and (B) contain an offer to repay the Loans and all other Obligations hereunder in full as of the effective date of such Change of Control. Notwithstanding the foregoing, any notice of a Change of Control may state that the offer to repay the Loans in accordance with this Section 2(d)(ii) is conditioned upon the effectiveness of the Change of Control, in which case such notice may be revoked by the Borrower (by notice to the Agent on or prior to the effective date of such Change of Control) if such condition is not satisfied. Within five (5) days following the receipt of such notice, the Agent, on behalf of the Lenders, shall notify the Borrower in writing whether the Lenders accept the offer of repayment of the Loans as set forth herein and provide the Borrower with the Agent’s calculation of the repayment amount due under LEGAL_US_E # 171549701.1171549701.5 this Section 2(d)(ii) in an amount equal to the Net Disposition Proceeds sum of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) firstthe product of (1) 100%, to times (2) the principal amount of the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofLoans, and plus (y) secondall accrued but unpaid interest on the principal amount of the outstanding Loans, which calculations shall be conclusive absent manifest error. In the event the Lenders accept the Borrower’s offer to repay the remaining Advances (including cash collateralization of Loans in accordance with this Section 2(d)(ii), the Borrower shall so repay the Loans and all other Obligations relating to any outstanding Letters of Credit in full in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with Agent’s calculations on the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt effective date of such Net Disposition Proceeds Change of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofControl. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make Lenders reject the prepayment required by this Section 2.20(c), subject Borrower’s offer to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied Loans in accordance with Section 6.62(d)(ii), the Loans and all other Obligations shall remain outstanding and the Transaction Documents shall remain in full force and effect. Each Lender’s determination to accept or reject the Borrower’s offer to repay the Loans as set forth herein shall be made in such Xxxxxx’s sole discretion.
Appears in 2 contracts
Samples: Credit Agreement (Terra Property Trust, Inc.), Credit Agreement (Terra Income Fund 6, LLC)
Mandatory Prepayments. If on any date (aafter giving effect to any other repayments or prepayments on such date) When any Borrower sells or otherwise disposes the sum of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in (i) the aggregate outstanding principal amount of Revolving Loans and Swingline Loans plus (ii) the aggregate amount of Letter of Credit Outstandings exceeds the Total Revolving Commitment as then in any fiscal yeareffect, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers Borrower shall repay the Advances on such date that principal amount of Swingline Loans and, after Swingline Loans have been paid in full, Unpaid Drawings and, after Unpaid Drawings have been paid in full, Revolving Loans, in an aggregate amount equal to such excess. If, after giving effect to the Net Disposition Proceeds prepayment of all outstanding Swingline Loans, Unpaid Drawings and Revolving Loans, the aggregate amount of Letter of Credit Outstandings exceeds the Total Revolving Commitment as then in effect (any such excess, a “Total Revolving Commitment Excess Amount”), the Borrower shall pay to the Administrative Agent an amount in cash and/or Cash Equivalents equal to such Total Revolving Commitment Excess Amount, and the Administrative Agent shall hold such payment as security for the obligations of the Borrower hereunder pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Administrative Agent and the Borrower which shall permit certain investments in Cash Equivalents satisfactory to the Administrative Agent and the Borrower, until the proceeds are applied to the Obligations, and which shall provide that a portion of the balance, if any, held in a cash collateral account established under such cash collateral agreement equal to the amount by which such balance exceeds the Total Revolving Commitment Excess Amount from time to time, shall be released to the Borrower, provided that (x) as a result of such salerelease, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing a mandatory prepayment shall not be deemed to be implied consent to any required under the first sentence of this paragraph unless such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofprepayment is made concurrently with such release, and (y) secondimmediately after giving effect thereto, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and or be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of or would result from such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Documentrelease.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Credit Agreement (Air Transport Services Group, Inc.), Credit Agreement (Air Transport Services Group, Inc.)
Mandatory Prepayments. (ai) When If the Facility Agent notifies PMI that, on any Borrower sells or otherwise disposes interest payment date, the sum of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in (A) the aggregate principal amount of all Revolving Credit Advances and Swingline Advances denominated in any fiscal yearEuro then outstanding plus (B) the Equivalent in Euro (determined on the third Business Day prior to such interest payment date) of the aggregate principal amount of all Revolving Credit Advances and Swingline Advances denominated in Dollars then outstanding exceeds 105% of the aggregate Revolving Credit Commitments of the Lenders on such date, PMI and each other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Borrower shall, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) within two Business Days following after receipt of such net proceedsnotice, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to prepay the outstanding principal installments amount of any Revolving Credit Advances and Swingline Advances owing by such Borrower in an aggregate amount sufficient to reduce such sum to an amount not to exceed 100% of the Term Loan in the inverse order aggregate Revolving Credit Commitments of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, Lenders on such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofdate.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts there shall be made by Agent upon which calculation Borrowers a Capital Markets Financing Transaction, PMI shall make prepay outstanding Term Advances in an aggregate amount equal to 50% of the prepayment required by this Section 2.20(cnet proceeds, rounded to the nearest million (with $500,000 being rounded upward), subject to adjustment when of such Capital Markets Financing Transaction received by PMI or received by a Subsidiary of PMI that has issued securities in such Capital Markets Financing Transaction guaranteed by PMI, on the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result last day of the failure by Borrowers to deliver current Interest Period for such financial statementsTerm Advances.
(diii) In the event The Facility Agent shall give prompt notice of any issuance or other incurrence of Indebtedness (other than Permitted Indebtednessprepayment required under this Section 2.15(b) by Borrowersto the Borrowers and the Lenders. Prepayments under Section 2.15(b)(i) shall be allocated first to Swingline Advances, Borrowers shall, no later than three (3) Business Days after ratably among the receipt by Borrowers Swingline Lenders; and any excess amount shall then be allocated to Revolving Credit Advances comprising part of the cash proceeds from any such issuance or incurrence of Indebtednesssame Revolving Credit Borrowing selected by the applicable Borrower, repay ratably among the Revolving Credit Lenders. Prepayments under Section 2.15(b)(ii) shall be allocated to Term Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of ratably among the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofLenders.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Credit Agreement (Philip Morris International Inc.), Credit Agreement (Altria Group, Inc.)
Mandatory Prepayments. (a) When If any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, Indebtedness (other than Inventory any Indebtedness permitted to be incurred in accordance with Section 7.2, but excluding Indebtedness refinanced pursuant to clause (a)(ii) thereof) shall be incurred by Holdings, the Ordinary Course Borrower or any of its Restricted Subsidiaries, the Borrower shall pay an amount equal to 100% of the Net Cash Proceeds of such Indebtedness within three Business Days of the date of receipt thereof to the Administrative Agent to be applied to the Obligations in accordance with Section 2.18.
(b) If on any date any of Holdings, the Borrower or Dispositions otherwise permitted under any of its Restricted Subsidiaries shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, the Borrower shall pay an amount equal to 100% of such Net Cash Proceeds within three Business Days of the date of receipt thereof to the Administrative Agent to be applied to the Obligations in accordance with Section 7.12.18; provided that notwithstanding the foregoing, Borrowers shall repay the Advances in (i) on each Reinvestment Prepayment Date, an amount equal to the Net Disposition Proceeds of such sale, such repayments Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be paid to the Administrative Agent to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with Section 2.18 and (ii) on the provisions date (the “Trigger Date”) that is three months after any such Reinvestment Prepayment Date, an amount equal to the portion of Section 3.2(b), provided however that if no Default or any Committed Reinvestment Amount with respect to the relevant Reinvestment Event of Default has occurred and is continuing, not actually expended by such repayments Trigger Date shall be paid to the Administrative Agent to be applied to cash collateralize any the Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document2.18.
(c) Borrowers shall prepay the outstanding amount If, for any fiscal year of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning Borrower commencing with the fiscal year ending December 31, 20222012, payable upon delivery there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date thereafter, pay an amount equal to the Excess Cash Flow Percentage of such Excess Cash Flow to the financial statements Administrative Agent to Agent referred be applied to the Obligations in and required by accordance with Section 9.7 for 2.18. Each such payment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 90 days following the Borrower’s fiscal year but end; provided, however, for the fiscal year ending December 31, 2012, Excess Cash Flow shall be calculated for the period commencing July 1, 2012 and ending December 31, 2012.
(d) Amounts to be applied in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount connection with prepayments pursuant to Section 2.12 shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.62.18.
Appears in 2 contracts
Samples: First Lien Credit Agreement (PGA Holdings, Inc.), First Lien Credit Agreement (PGA Holdings, Inc.)
Mandatory Prepayments. (ai) When If at any time Borrowing Availability is less than $5,000,000, Borrower sells shall immediately repay the aggregate outstanding Revolving Credit Advances to the extent required to eliminate such deficiency. If any such deficiency remains after repayment in full of the aggregate outstanding Revolving Credit Advances, Borrower shall provide cash collateral for the Letter of Credit Obligations in the manner set forth in Annex B to the extent required to eliminate such excess or otherwise disposes deficiency. Notwithstanding the foregoing, any Overadvance made pursuant to Section 1.1(a)(iii) shall be repaid only on demand in accordance with such Section.
(ii) Immediately upon receipt by Borrower or any Secured Guarantor of any Collateral resulting in Net Disposition Proceeds in excess proceeds of any cash asset disposition (excluding proceeds of asset dispositions permitted by Section 6.8(a)) to the extent the net proceeds of such asset dispositions exceed $500,000 250,000 in the aggregate in any fiscal yearFiscal Year, other than Inventory in Borrower shall prepay the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Obligations in an amount equal to the Net Disposition Proceeds of all such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, net of (A) commissions and until other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by Borrower or any Secured Guarantor in connection therewith (in each case, paid to non-Affiliates), (B) transfer taxes, (C) amounts payable to holders of senior Liens (to the date extent such Liens constitute Permitted Encumbrances hereunder), if any, and (D) an appropriate reserve for income taxes payable in cash in connection therewith; provided, that if Borrower or the applicable Secured Guarantor intends to reinvest all or any portion of paymentthe net proceeds of any asset disposition within 270 days thereafter in fixed assets and Borrower promptly notifies Agent of that intention in writing, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied if (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and at the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt date of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiarieswritten notification, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) secondBorrower or such Secured Guarantor, as the case may be, grants a first security interest to Agent in such replacement assets when acquired, then the amount of any such mandatory prepayment shall be reduced by the amount to be reinvested; provided, further that if and to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with extent that Borrower or such Secured Guarantor, as the provisions of Section 3.2(b)case may be, provided however does not reinvest such net proceeds within that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) 270-day period, may request an appraisal of Equipment and Real Property to determine if Borrower shall then repay the then outstanding balance of Loans with net proceeds that have not been reinvested on the Term Loan exceeds the Term Loan Collateral Amount at the time last day of such issuance of Equity Interests270-day period. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of Any such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property prepayment shall be applied in accordance with Section 6.61.3(c).
(iii) If Borrower or any Secured Guarantor shall suffer any Event of Loss, then such Person shall (A) promptly notify the Agent of such Event of Loss with anticipated net proceeds in excess of $1,000,000 (including the amount of the estimated net insurance proceeds net of amounts payable to holders of senior Liens (to the extent such Liens constitute Permitted Encumbrances hereunder, if any,) or other awards payable in connection with such Event of Loss) and (B) promptly upon receipt of such proceeds by such Person, Borrower shall prepay the Obligations in an amount equal to such proceeds net of (x) all money actually applied (or held in reserve pending such application) to repair or reconstruct the damaged property or property affected by condemnation or taking but subject to the terms of Section 5.4(c) and (y) all out-of-pocket transaction costs and (z) related cash taxes. Any such prepayment shall be applied in accordance with Section 1.3(d).
(iv) Proceeds of Keyman Life Insurance pledged to the Agent shall be immediately used to prepay the Obligations in an amount equal to such proceeds, which shall be applied in accordance with Section 1.3(c).
(v) If Holdings or Borrower issues Stock, no later than the Business Day following the date of receipt of any cash proceeds thereof net of underwriting discounts and commissions and other reasonable costs paid to non-Affiliates in connection therewith, Borrower shall prepay the Obligations in an amount equal to 50% of such net proceeds. Any such prepayment shall be applied in accordance with Section 1.3(c). Notwithstanding the foregoing two sentences, Borrower need not prepay the Obligations in accordance with this Section 1.3(b)(v) in connection with (A) issuances of Stock of Holdings to the extent (but only to the extent) the proceeds thereof are used to purchase, retire, redeem or otherwise acquire for value all or any portion of the Zero Coupon Debt, (B) issuances of Stock of Holdings to the existing Stockholders of Holdings or to seller(s) involved in a Permitted Acquisition, in each case to the extent (but only to the extent) that such Stock or the proceeds thereof are immediately used as a consideration for all or a portion of the purchase price of a Permitted Acquisition, so long as no Change of Control results after giving effect to such issuance or series of related issuances, (C) issuance of directors' qualifying shares, (D) issuances of Stock of Holdings issued to any holder of Indebtedness of Holdings or Borrower to the extent (but only to the extent) issued in connection with an issuance, refinancing or restructuring of Indebtedness permitted hereunder, so long as no Change of Control results after giving effect to such issuance or a series of related issuances, and (E) sales or issuances of common Stock to officers, directors or employees of Holdings, Borrower or any Subsidiary, as the case may be, pursuant to a management or employee benefit plan, to the extent the aggregate proceeds of all common Stock so issued in excess of the redemptions of common Stock of employees shall not exceed $2,000,000 in any Fiscal Year.
Appears in 2 contracts
Samples: Credit Agreement (Roller Bearing Co of America Inc), Credit Agreement (Roller Bearing Co of America Inc)
Mandatory Prepayments. (a) When Subject to Section 7.1 hereof, when any Borrower Loan Party or any Subsidiary sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Business, Borrowers Loan Parties shall repay the Advances in an amount equal to the Net Disposition Cash Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceedsNet Cash Proceeds, and until the date of payment, such proceeds shall be held in trust for AgentAgents. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan A in the inverse order of the maturities thereof (including the final installment thereof) until paid in full in cash, second to the outstanding principal installments of the Term Loan B in the inverse order of the maturities thereof (including the final installment thereof) until paid in full in cash, and (y) second, third to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), ; provided however that if no Default or Event of Default has occurred and is continuing, such repayments of the remaining Advances shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Administrative Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
; provided further, that (bx) Notwithstanding in the foregoingevent any Loan Party has received Net Cash Proceeds from any sale or disposition permitted pursuant to Section 7.1 hereof, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and (y) the Borrowing Agent shall have notified Agent has delivered a Reinvestment Notice within two five (25) Business Days following receipt of such Net Disposition Proceeds Cash Proceeds, and (z) no Default or Event of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of Default is continuing, such Net Disposition Cash Proceeds in fixed may, at Borrowers’ option, be deposited into a separate Depository Account at PNC, or capital assets or other assets useful applied to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the outstanding Revolving Advances and Agent Borrowers shall implement a reserve equal be permitted to use such proceeds held in such separate Depository Account, or reborrow Revolving Advances (if such proceeds were applied to Revolving Advances) in accordance with the terms hereof in the amount of such Net Disposition Cash Proceeds pursuant to Section 2.1(a)(y)(vi)purchase replacement assets, so long as such replacement assets are purchased no later than one hundred eighty (180) days from the date the Reinvestment Notice was received by the Agents. To the extent replacement assets are not purchased within such one hundred eighty (180) day period or an Event of Default occurs, Borrowers may request shall apply such proceeds held in such separate Depository Account, or be deemed to have requested a Revolving Advances Advance in the amount of the Net Disposition Proceeds (such net cash proceeds, and such proceeds or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount Revolving Advances shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to applied in the release of manner set forth before the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Documentproviso above.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(db) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Loan Parties or any Subsidiary or the issuance of any Equity Interests (except as set forth in Section 10.17 or in connection with a Qualified IPO) by any Loan Party or any Subsidiary, Loan Parties shall, no later than three (3) Business Day after the receipt by such Loan Party or any Subsidiary of (i) the Net Cash Proceeds from any such issuance or incurrence of Indebtedness or (ii) the Net Cash Proceeds of any issuance of Equity Interests, as applicable, repay the Advances in an amount equal to (x) one hundred percent (100%) of such Net Cash Proceeds in the case of such incurrence or issuance of Indebtedness and (y) one hundred percent (100%) of such Net Cash Proceeds in the case of an issuance of Equity Interests. Such repayments will be applied in the same manner as set forth in Section 2.20(a) hereof.
(c) All proceeds received by Loan Parties or any Subsidiary or Administrative Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Loan Party or any Subsidiary, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6 hereof; provided, that (x) in the event Borrowing Agent has delivered a Reinvestment Notice within five (5) Business Days following receipt of Net Cash Proceeds from any casualty or condemnation event, and (y) no Default or Event of Default is continuing, such Net Cash Proceeds may, at Borrowers’ option, be deposited into a separate Depository Account at PNC, or applied to the outstanding Revolving Advances and Borrowers shall be permitted to use such proceeds held in such separate Depository Account, or reborrow Revolving Advances (if such proceeds were applied to Revolving Advances) to purchase replacement assets, so long as such replacement assets are purchased no later than one hundred eighty (180) days from the date the Reinvestment Notice was received by the Agents. To the extent replacement assets are not purchased within such one hundred eighty (180) day period or an Event of Default occurs, Borrowers shall apply such proceeds held in such separate Depository Account, or be deemed to have requested a Revolving Advance in the amount of such net cash proceeds, and such proceeds or Revolving Advances shall be applied in the manner set forth in Section 6.6. hereof.
(d) In the event of any issuance of Equity Interests by Loan Parties or any Subsidiary in connection with a Qualified IPO, the Loan Parties shall, no later than three (3) Business Days after the receipt by Borrowers such Loan Party or any Subsidiary of the cash proceeds from any Net Cash Proceeds of such issuance or incurrence of IndebtednessQualified IPO, repay the Advances in an amount equal to one hundred forty percent (100.0040%) of such cash proceeds in the case of Net Cash Proceeds, such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan A in the inverse order of the maturities thereof (including the final installment thereof) until paid in full in cash, second to the outstanding principal installments of the Term Loan B in the inverse order of the maturities thereof (including the final installment thereof) until paid in full in cash, and (y) second, third to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), ; provided however that if no Default or Event of Default has occurred and is continuing, such repayments of the remaining Advances shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Administrative Agent may determine determine, subject to Borrowers’ ability to reborrow re-borrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Revolving Credit, Term Loan and Security Agreement (A.S.V., LLC), Revolving Credit, Term Loan and Security Agreement (Manitex International, Inc.)
Mandatory Prepayments. (ai) When Subject to Section 2.1(b), if at any time the outstanding balance of the aggregate Revolving Exposure exceeds Availability, or the limitations imposed by Section 6.5 hereof (any and all such excess Revolving Exposure is herein referred to, collectively, as an “Overadvance”), Borrower sells shall promptly, and in any event within two (2) Business Days, repay the aggregate outstanding Revolving Credit Advances to the extent required to eliminate such Overadvance. If any such Overadvance remains after repayment in full of the aggregate outstanding Revolving Credit Advances, Borrower shall provide cash collateral for the Letter of Credit Obligations in the manner set forth in Annex A to the extent required to eliminate such Overadvance. Any such prepayment shall be applied in accordance with Section 2.2(c).
(ii) Subject to Section 2.2(c), within 2 Business Days after receipt by any Loan Party or otherwise disposes Subsidiary of cash proceeds (including insurance proceeds and proceeds from casualty losses or condemnations) of any Collateral resulting in Net Disposition Proceeds in excess voluntary or involuntary sale or disposition of, or any casualty or condemnation event with respect to, any property or assets of $500,000 in the aggregate in any fiscal yearLoan Party or Subsidiary (determined exclusive of any proceeds of sales and other dispositions permitted by Sections 5.1(a) and (c) solely for purposes of this Section 2.2(b)(ii)), other than Inventory in the Ordinary Course Borrower shall notify Lender of Business or Dispositions otherwise permitted under Section 7.1, Borrowers such Loan Party’s receipt of such cash proceeds and shall repay prepay the Advances (and cash collateralize Letter of Credit Obligations) in an amount equal to the Net Disposition Proceeds of all such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net cash proceeds, net of (A) commissions and until other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by Borrower in connection therewith (in each case, paid to non-Affiliates), (B) transfer taxes, (C) amounts payable to holders of Liens that are senior to the date Liens of paymentLender created under the Loan Documents on such assets (to the extent such Liens constitute Permitted Encumbrances hereunder), such proceeds shall be held and (D) an appropriate reserve for income taxes in trust for Agent. The foregoing shall not be deemed accordance with GAAP in connection therewith (it being understood that to be implied consent to the extent any such sale otherwise prohibited by reserve is reversed or abandoned, the terms and conditions hereofamount so reversed or abandoned shall constitute cash proceeds payable pursuant to this Section). Such repayments Any such prepayment shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b2.2(c); provided, provided however that if so long as (1) no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be is continuing and the Borrowing Agent shall have notified Agent within two or would result therefrom, (2) Business Days following Borrower shall have given Lender prior written notice of Borrower’s intention to apply such monies to the costs of replacement of the properties or assets that are the subject of such sale or disposition or the cost of purchase or construction of other assets useful in the business of such Loan Party or, in the case of proceeds from casualty losses or condemnation, to the cost of repair and restoration of the affected assets, (3) the monies are held in a Deposit Account in which Lender has a perfected first-priority security interest, and (4) such Loan Party completes such replacement, purchase, or construction within one (1) year after the initial receipt of such Net Disposition Proceeds monies, then the Loan Party whose assets were the subject of such disposition shall have the option to apply such monies to the costs of replacement of such assets or the costs of purchase or construction of other assets useful in the business of such Loan Party or, in the case of proceeds from casualty losses or condemnation, to the cost of repair and restoration of the affected assets, unless and to the extent that such applicable period shall have expired without such replacement, purchase, or construction being made or completed, in which case, such net cash proceeds not so applied shall be paid to Lender and applied in accordance with Section 2.2(c).
(iii) [Intentionally Omitted.]
(iv) If any Loan Party incurs Indebtedness not permitted under the terms of this Agreement, no later than the Business Day following the date of receipt of the proceeds thereof, Borrower shall notify Lender of such Loan Party’s or its Subsidiary’s election to reinvest all or any portion receipt of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties proceeds and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount Advances (and cash collateralize Letter of the Term Loans Credit Obligations) in an amount equal to twentythe lesser of (A) all such proceeds, net of reasonable costs paid to non-five percent Affiliates in connection therewith and (25%B) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the outstanding Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters Letter of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, Obligations. Any such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property prepayment shall be applied in accordance with Section 6.62.2(c).
Appears in 2 contracts
Samples: Credit Agreement (Universal Technical Institute Inc), Credit Agreement (Universal Technical Institute Inc)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes In the event of any Collateral resulting termination of all the Commitments, the Borrower shall, on the date of such termination, repay or prepay all its outstanding Borrowings and replace or cause to be canceled (or make other arrangements reasonably satisfactory to the Administrative Agent and the Issuing Bank with respect to) all outstanding Letters of Credit. If, after giving effect to any partial reduction of the Revolving Credit Commitments or at any other time, the Aggregate Revolving Credit Exposure would exceed the Total Revolving Credit Commitment, then the Borrower shall, on the date of such reduction or at such other time, repay or prepay Borrowings and, after such Borrowings shall have been repaid or prepaid in Net Disposition Proceeds full, replace or cause to be canceled (or make other arrangements reasonably satisfactory to the Administrative Agent and the Issuing Bank with respect to) Letters of Credit in excess an amount sufficient to eliminate such excess.
(b) Upon the occurrence of $500,000 in a Prepayment Event, the aggregate Borrower shall promptly (and in any fiscal year, event within three Business Days of such Prepayment Event) repay outstanding Borrowings (or make other than Inventory in arrangements reasonably satisfactory to the Ordinary Course Administrative Agent and the Issuing Bank with respect to Letters of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Credit) in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, Amount To Be Prepaid and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the corresponding amount of the Net Disposition Proceeds Commitments will be permanently canceled (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall may not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Documentreborrowed).
(c) Borrowers The Borrower shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied deliver to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) firstAdministrative Agent, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) secondextent practicable, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowersat least three Business Days’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ prior written notice of such issuance prepayment. Each notice of Equity Interestsprepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the aggregate principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject to Section 2.16, but shall otherwise be without premium or penalty, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the Revolving Advances. If Agent orders an appraisal date of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofpayment.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Credit Agreement (CGG), Amendment and Restatement Agreement (CGG)
Mandatory Prepayments. (ai) When If, after giving effect to any termination or reduction of the Commitments pursuant to Section 2.06(b), the total Revolving Credit Exposures exceeds the total Commitments, then the Borrower sells shall (A) prepay the Borrowings on the date of such termination or otherwise disposes reduction in an aggregate principal amount equal to such excess, and (B) if any excess remains after prepaying all of any Collateral resulting in Net Disposition Proceeds in excess the Borrowings as a result of $500,000 in an LC Exposure, pay to the aggregate in any fiscal year, other than Inventory in Administrative Agent on behalf of the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in Lenders an amount equal to such excess to be held as cash collateral as provided in Section 2.07(j).
(ii) The Borrower shall prepay the outstanding principal amount of Loans in amounts equal to (A) one hundred percent (100%) of the aggregate Net Proceeds from any Asset Disposition (other than any Asset Disposition by a DevCo) or (B) the DevCo Ownership Percentage with respect to such DevCo of the aggregate Net Proceeds from any Asset Disposition by a DevCo. Such prepayments shall be made within one (1) Business Day after the date of receipt of the Net Disposition Proceeds of any such sale, Asset Disposition by such repayments to be made promptly but in no event more than Credit Party and within three (3) Business Days following receipt of such net proceeds, and until after the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to receipt of the Net Proceeds of any such sale otherwise prohibited Asset Disposition by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), such DevCo; provided however that if so long as no Default or Event of Default has occurred and is continuing, such repayments no prepayments of aggregate Net Proceeds from Asset Dispositions shall be applied required hereunder to cash collateralize the extent such Net Proceeds are used to acquire other assets useful in the ordinary course of the business of the Credit Parties or such DevCo, as applicable, within three hundred sixty (360) days after receipt of such Net Proceeds by the Credit Parties or such DevCo, as applicable, or such longer period of time as may be agreed to by Majority Lenders; provided, however, that any Obligations related to outstanding Letters portion of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances the Net Proceeds not actually reinvested within the applicable time period shall be prepaid in accordance with the terms hereof.
(b) this Section 3.04(c). Notwithstanding the foregoing, with respect there shall be no reinvestment period for any Asset Disposition of the Equity Interests in any DevCo.
(iii) Promptly following the issuance of any Debt by any Credit Party (other than Debt permitted by Section 9.02 or otherwise consented to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(aby Majority Lenders), so long as no Event of Default the Borrower shall have occurred and be continuing and prepay the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds Loans in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve an aggregate amount equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount one hundred percent (100%) of the Net Disposition Proceeds (or received in respect of such portion thereof) Debt. Nothing in this paragraph is intended to pay the actual cost permit any Credit Party to incur Debt other than as permitted under Section 9.02, and any such incurrence of reinvestment and the reserve with respect to such amount Debt in violation of Section 9.02 shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) breach of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentAgreement.
(civ) Borrowers The Borrower shall prepay the outstanding principal amount of the Term Loans in an amount equal to twenty-five (A) one hundred percent (25100%) of Excess Cash Flow for each fiscal year beginning the aggregate Net Proceeds from any Insurance and Condemnation Event received by any Credit Party and (B) the DevCo Ownership Percentage with the fiscal year ending December 31, 2022, payable upon delivery respect to such DevCo of the financial statements to Agent referred to in aggregate Net Proceeds from any Insurance and required Condemnation Event received by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofDevCo. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts Such prepayments shall be made by Agent upon which calculation Borrowers shall make within one (1) Business Day after the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver date of receipt of Net Proceeds of any rights Agent or Lenders may have as a result of the failure such Insurance and Condemnation Event by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than Credit Party and within three (3) Business Days after the date of receipt by Borrowers of the cash proceeds from Net Proceeds of any such issuance or incurrence of IndebtednessInsurance and Condemnation Event by such DevCo; provided that, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if so long as no Default or Event of Default has occurred and is continuing, no prepayments of Net Proceeds from Insurance and Condemnation Events shall be required hereunder to the extent such repayments Net Proceeds are used to acquire other assets useful in the ordinary course of the business of the Credit Parties or such DevCo, as applicable, within three hundred sixty (360) days after receipt of such Net Proceeds by the Credit Parties or such DevCo, as applicable, or such longer period of time as may be agreed to by Majority Lenders; provided, however, that any portion of the Net Proceeds not actually reinvested within the applicable time period shall be prepaid in accordance with this Section 3.04(c).
(v) Each prepayment of Borrowings pursuant to this Section 3.04(c) shall be applied, first, ratably to any ABR Borrowings then outstanding, and, second, to any Eurodollar Borrowings then outstanding, and if more than one Eurodollar Borrowing is then outstanding, to each such Eurodollar Borrowing in order of priority beginning with the Eurodollar Borrowing with the least number of days remaining in the Interest Period applicable thereto and ending with the Eurodollar Borrowing with the most number of days remaining in the Interest Period applicable thereto.
(vi) Each prepayment of Borrowings pursuant to this Section 3.04(c) shall be applied ratably to cash collateralize any Obligations related the Loans included in the prepaid Borrowings. Prepayments pursuant to outstanding Letters of Credit lastthis Section 3.04(c) in such order as Agent may determine subject shall be accompanied by accrued interest to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofextent required by Section 3.02.
(evii) Other than pursuant If any prepayment is required to any issuance of Equity Interests of Borrowers (ibe made under Section 3.04(c)(ii)(B) contemplated by or Section 6.5(d3.04(c)(iv)(B), (ii) used the Borrower shall cause the applicable DevCo to fund Capital Expenditures make a cash dividend to a Credit Party in an amount not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice less than the amount of such issuance of Equity Interests, and Agent in its sole discretion, required prepayment within such ten three (103) day period, may request an appraisal of Equipment and Real Property Business Days after the applicable DevCo receives the Net Proceeds required to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofprepaid.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Credit Agreement (Oasis Midstream Partners LP), Credit Agreement (Oasis Midstream Partners LP)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence termination of Indebtedness (other than Permitted Indebtedness) by Borrowersall the Commitments, Borrowers the Borrower shall, no later than three on the date of such termination, repay or prepay all its outstanding Borrowings and all outstanding Swingline Loans and replace or cause to be canceled (3or make other arrangements satisfactory to the Administrative Agent and the Issuing Bank with respect to) Business Days all outstanding Letters of Credit. If, after giving effect to any partial reduction of the Commitments or at any other time, the Aggregate Revolving Credit Exposure would exceed the Total Commitment, then the Borrower shall, on the date of such reduction or at such other time, repay or prepay Borrowings or Swingline Loans (or a combination thereof) and, after the receipt by Borrowers of the cash proceeds from any such issuance Borrowings and Swingline Loans shall have been repaid or incurrence of Indebtednessprepaid in full, repay the Advances in an amount equal replace or cause to one hundred percent be canceled (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, make other arrangements satisfactory to the outstanding principal installments of Administrative Agent and the Term Loan in the inverse order of the maturities thereof and (yIssuing Bank with respect to) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, an amount sufficient to eliminate such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofexcess.
(eb) Other than pursuant The Borrower shall deliver to any issuance the Administrative Agent, at the time of Equity Interests of Borrowers each prepayment required under this Section 2.12, (i) contemplated a certificate signed by Section 6.5(d), a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitionsthe extent practicable, Borrowers shall provide Agent within ten (10) days’ at least three days prior written notice of such issuance prepayment. Each notice of Equity Interestsprepayment shall specify the prepayment date, the Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings under this Section 2.12 shall be subject to Section 2.15, but shall otherwise be without premium or penalty, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the Revolving Advances. If Agent orders an appraisal date of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofpayment.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Reliant Software, Inc.), Revolving Credit Agreement (Community Choice Financial Inc.)
Mandatory Prepayments. In the event that the Borrower actually receives any Net Cash Proceeds arising from any Equity Issuance or the Borrower or any other member of the Consolidated Group actually receives any Net Cash Proceeds arising from any Debt Issuance (a) When any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory a Debt Issuance under any committed term loan facility that has reduced the Commitments hereunder pursuant to Section 2.7(b) above) or Asset Sale, in each case which Net Cash Proceeds are received after the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Initial Funding Date, Borrowers then the Borrower shall repay prepay the Advances in an amount equal to the Net Disposition Proceeds 100% of such sale, such repayments to be made promptly but in no event more Net Cash Proceeds not later than three (3) Business Banking Days following the receipt by the Borrower or any such Subsidiary of such net proceeds, Net Cash Proceeds. The Borrower shall promptly (and until not later than the date of paymentreceipt thereof) notify the Administrative Agent of the receipt by the Borrower or, as applicable, any other member of the Consolidated Group, of such proceeds Net Cash Proceeds from any Equity Issuance, Debt Issuance or Asset Sale, and such notice shall be held in trust for Agentaccompanied by a reasonably detailed calculation of the Net Cash Proceeds. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments Each prepayment of Advances shall be applied (x) first, ratably and shall be accompanied by accrued interest and fees on the amount prepaid to the outstanding principal installments of the Term Loan date fixed for prepayment, plus, in the inverse order case of the maturities thereofany Term Rate Advances, and (y) second, any amounts due to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Banks under Section 3.2(b3.6(c), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) . Notwithstanding the foregoing, mandatory repayments with respect to any Net Disposition Cash Proceeds which would otherwise give rise to from Debt Issuances or Asset Sales received by a prepayment under Section 2.20(a), Foreign Subsidiary shall not be required if and for so long as no Event of Default the Borrower has determined in good faith (which determination shall have occurred and be continuing and conclusive) that repatriation to the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt Borrower of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Cash Proceeds (or such portion thereofx) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advancewould have adverse tax consequences (and, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of Debt Issuances, such incurrence or issuance of Indebtedness. Such repayments will be applied (x) firstadverse tax consequences are material), to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) secondwould be prohibited, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default delayed or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year restricted under applicable local law or (iiiz) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice would violate the applicable organizational documents of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofSubsidiary.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Bridge Credit Agreement (Amgen Inc), Bridge Credit Agreement
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes of any Collateral resulting in Each Net Disposition Proceeds in excess of $500,000 in Prepayment shall be applied as follows: (i) up to the aggregate Release Amount for the affected Individual Property in any fiscal year, order or priority as Administrative Agent may determine in its sole discretion and (ii) to Borrower. No Prepayment Premium or other than Inventory premium or penalty shall be due in connection with any prepayment made pursuant to this Section 2.4.2. The Allocated Loan Amount for the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers Individual Property with respect to which such Net Proceeds Prepayment was applied shall repay the Advances be reduced in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agentprepayment. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Administrative Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election provide to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their SubsidiariesBorrower, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interestsprior notice, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under a release of the Individual Property if (A) at any insurance policy on account of damage time the Release Amount is reduced to zero, together with such additional documents and instruments evidencing or destruction of any assets confirming the release as Borrower shall reasonably request, or property of any Borrowers, (B) Administrative Agent is required to deliver such release pursuant to a court order issued in connection with a Condemnation or (ii) as a result release of any taking or condemnation the portion of any assets or property shall be applied an Individual Property that is subject to a Condemnation.
(b) As provided in Section 6.4(e) hereof, each Casualty/Condemnation Prepayment tendered by Borrower to Administrative Agent in accordance with said Section 6.66.4(e) shall be in the amount of the Release Amount in respect of the applicable Individual Property. No Prepayment Premium or other penalty or premium shall be due in connection with any such Casualty/Condemnation Prepayment.
(c) In connection with any release under this Section 2.4.2, in the event that such release would result in an individual Borrower being an Unencumbered Borrower, such Unencumbered Borrower shall be released by Administrative Agent on behalf of Lenders from the obligations of the Loan Documents, except with respect to those obligations and liabilities which expressly survive the repayment of the Loan pursuant to any Loan Document and shall no longer be a Borrower for the purposes of this Agreement. In connection with a release or cancellation of each Unencumbered Borrower, Administrative Agent agrees to deliver, on behalf of Lenders, (i) a UCC-3 Financing Statement termination or amendment releasing each Lenders’ security interest in the collateral pledged to such Lender relating to each Unencumbered Borrower, and (ii) instruments executed by Administrative Agent or Lenders, as applicable, reasonably necessary to evidence the release or cancellation of each Unencumbered Borrower from its obligations under the Loan Documents. All reasonable costs and expenses incurred by Administrative Agent or Lenders in connection with such release shall be paid by Borrower.
Appears in 2 contracts
Samples: Loan Agreement (Excel Trust, L.P.), Loan Agreement (Excel Trust, L.P.)
Mandatory Prepayments. Notwithstanding the provisions of Section 6.4 hereof, and subject to the terms of Section 7.b. of the Term B Loan Intercreditor Agreement:
(a) When Upon the receipt by any Borrower sells or otherwise disposes any of its Subsidiaries of any Collateral resulting in Net Disposition Proceeds Extraordinary Receipts in excess of $500,000 250,000 in the aggregate in any fiscal year:
(i) if such Extraordinary Receipts are the proceeds of any Canadian Pension Plan, other than Inventory then Borrowers shall immediately prepay the Obligations and the Term B Loan Debt in an amount equal to fifty (50%) percent of such Extraordinary Receipts (net of any reasonable expenses incurred in collecting such Extraordinary Receipts) as follows: first, to the outstanding principal amount of the Term Loans until paid in full, and second, at Borrowers’ option, to either (A) the outstanding principal amount of the Term B Loan, or (B) the outstanding principal amount of the Revolving Loans so long as (in the Ordinary Course case of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances this clause (B) only) Agent establishes and maintains a permanent Reserve in an amount equal to the Net Disposition Proceeds amount of such saleproceeds that are so applied by the prepayment of the Revolving Loans;
(ii) if such Extraordinary Receipts are the proceeds of Inventory or Accounts, such repayments then Borrowers shall immediately prepay the Obligations and the Term B Loan Debt in an amount equal to be made promptly but in no event more than three one hundred (3100%) Business Days following receipt percent of such Extraordinary Receipts (net proceeds, and until the date of payment, any reasonable expenses incurred in collecting such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (xExtraordinary Receipts) as follows: first, to the outstanding principal installments amount of the Term Loan Revolving Loans until paid in the inverse order of the maturities thereoffull, and (y) second, to the remaining Advances outstanding principal amount of the Term Loans until paid in full, and third, to the outstanding principal amount of the Term B Loan until paid in full; and
(including cash collateralization iii) if such Extraordinary Receipts are the proceeds of all Obligations relating to any outstanding Letters Collateral (other than Inventory or Accounts or the proceeds of Credit in accordance with the provisions of Section 3.2(bany Canadian Pension Plan), provided however then Borrowers shall immediately prepay the Obligations and the Term B Loan Debt in an amount equal to one hundred (100%) percent of such Extraordinary Receipts (net of any reasonable expenses incurred in collecting such Extraordinary Receipts) as follows: first, to the outstanding principal amount of the Term Loans until paid in full, and second, at Borrowers’ option, to either (A) the outstanding principal amount of the Term B Loan, or (B) the outstanding principal amount of the Revolving Loans so long as (in the case of this clause (B) only) Agent establishes and maintains a permanent Reserve in an amount equal to the amount of such Extraordinary Receipts that if are so applied to the prepayment of the Revolving Loans; provided, however, that (A) so long as no Default or Event of Default has occurred and is continuing, on the date any Borrower or any of its Subsidiaries receives Extraordinary Receipts consisting of insurance proceeds from one or more policies covering, or proceeds from any judgment, settlement, condemnation or other cause of action in respect of, the loss, damage, taking or theft of any property or assets, such repayments shall Extraordinary Receipts may, at the option of the Borrowers, be applied to cash collateralize repair, refurbish or replace such property or assets or acquire replacement property or assets for the property or assets so lost, damaged or stolen or other property or assets used or useful in the business of any Obligations related Borrower for the property or assets so disposed, provided, that (w) Agent has a first priority Lien on such replacement (or repaired or restored) property or assets, (y) (I) such insurance proceeds are delivered to outstanding Letters of Credit last) Agent to hold in such order as Agent may determine, subject escrow until required to Borrowers’ ability to re-borrow Revolving Advances be used in accordance with this Agreement or (II) Agent establishes a Reserve in the terms hereof.
amount of such insurance proceeds until such time as such proceeds are applied to repair, refurbish or replace such property or assets or acquire replacement property or assets for the property or assets so lost, damaged or stolen or other property or assets used or useful in the business of any Borrower for the property or assets so disposed, (by) Notwithstanding the foregoing, with respect Borrowers deliver to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following 10 days after the date of receipt of such Net Disposition Proceeds Extraordinary Receipts a certificate stating that such Extraordinary Receipts shall be used to repair or refurbish such property or assets or to acquire such replacement property or assets for the property or assets so lost, damaged or stolen or such other property or assets used or useful in the business of any Borrower within one (1) year after the date of receipt of such Extraordinary Receipts (which certificate shall set forth an estimate of the applicable Loan Party’s Extraordinary Receipts to be so expended), and (z) if such Extraordinary Receipts are the proceeds of Real Property and aggregate $1,000,000 or its Subsidiary’s election to reinvest more, Borrowers shall obtain the prior written consent of Agent, and if all or any portion of such Net Disposition Proceeds Extraordinary Receipts described in fixed or capital assets or other assets useful to this clause (A) are not so used within one (1) year after the business date of the Loan Parties and their Subsidiariesreceipt of such Extraordinary Receipts, then such Net Disposition Proceeds unused Extraordinary Receipts shall be applied to prepay the Obligations and the Term B Loan Debt in accordance with this Section 2.4(a), (B) pending any such reinvestment described in clause (A) above, the Extraordinary Receipts shall be applied as a prepayment of Revolving Loans. Any Extraordinary Receipts applied to repair, refurbish or replace Collateral pursuant to and in accordance with this Section 2.4(a) shall not be deemed Capital Expenditures for purposes of this Agreement.
(b) Upon the issuance or sale by Agent any Borrower or any of its Subsidiaries of Capital Stock of such Borrower or Subsidiary as permitted in Sections 9.7(b)(iii) and (iv) hereof, or the issuance or incurrence by any Borrower or any of its Subsidiaries of any Indebtedness of the type described in Section 9.9(e) hereof, Borrowers shall immediately prepay the Obligations and the Term B Loan Debt in an amount equal to one hundred (100%) percent of the Net Cash Proceeds received by such Borrower or Subsidiary in connection therewith as follows: first, to the outstanding principal amount of the Term Loans until paid in full, and second, at Borrowers’ option, to either (A) the outstanding principal amount of the Term B Loan, or (B) the outstanding principal amount of the Revolving Advances Loans so long as (in the case of this clause (B) only) Agent establishes and Agent shall implement maintains a reserve permanent Reserve in an amount equal to the amount of such Net Disposition Cash Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, that are so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect applied to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds prepayment of the Revolving Advances to pay the cost of such cost of reinvestmentLoans. The foregoing provisions of this subsection (b) shall not be deemed to be implied consent to any Disposition such issuance, incurrence or other transaction sale otherwise prohibited by the terms and conditions of this Agreement or any Other DocumentAgreement.
(ci) Upon the sale or other disposition of any Collateral by any Borrower or any of its Subsidiaries as permitted in Sections 9.7(b)(ii), (vi), (vii) or (x) hereof, or the sale or other disposition of any Collateral by any Borrower or any of its Subsidiaries not otherwise permitted by the terms of this Agreement but consented to by the Required Lenders, Borrowers shall immediately prepay the outstanding amount of Obligations and the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term B Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances Debt in an amount equal to one hundred percent (100.00100%) percent of the Net Cash Proceeds received by such cash proceeds Borrower or such Subsidiary in connection with such sale or other disposition as follows:
(A) if such sale or other disposition includes Inventory or Accounts, then the case portion of the Net Cash Proceeds attributable to such incurrence Inventory or issuance of Indebtedness. Such repayments will Accounts shall be applied (x) applied, first, to the outstanding principal installments amount of the Term Loan Revolving Loans until paid in the inverse order of the maturities thereof and (y) full, second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance principal amount of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment Loans until paid in full, and Real Propertythird, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance principal amount of the Term LoanB Loan until paid in full; and
(B) if such sale or other disposition includes any Collateral (other than Inventory or Accounts), then one hundred percent (100.00%) the portion of the Net Cash Proceeds attributable to such net cash proceeds received from the issuance of Equity Interests other Collateral shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amountapplied, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments amount of the Term Loans until paid in full, and second, at Borrowers’ option, to either (x) the outstanding principal amount of the Term B Loan, or (y) the outstanding principal amount of the Revolving Loans so long as (in the case of this clause (y) only) Agent establishes and maintains a permanent Reserve in an amount equal to the amount of such Net Cash Proceeds that are so applied to the prepayment of the Revolving Loans.
(ii) Upon the sale or other disposition of the Capital Stock, assets or properties of an Exempt Subsidiary as permitted in Section 9.7(b)(ix) hereof, Borrowers shall immediately prepay the Obligations and the Term B Loan Debt in an amount equal to the lesser of (x) one hundred (100%) percent of the Net Cash Proceeds received by the applicable Borrower, Guarantor or Subsidiary in connection with such sale or other disposition or (y) the amount equal to four (4) times TTM EBITDA of such Exempt Subsidiary for the period of twelve (12) consecutive fiscal months ended on the last day of the month immediately preceding the date of such sale or other disposition for which Agent has received financial statements of Parent and its Subsidiaries as follows:
(A) if such sale or other disposition includes Inventory or Accounts, then the portion of the Net Cash Proceeds from such sale or other disposition attributable to such Inventory or Accounts shall be applied, first, to the outstanding principal amount of the Revolving Loans until paid in full, second, to the outstanding principal amount of the Term Loans until paid in full, and third, to the outstanding principal amount of the Term B Loan until paid in full; and
(B) if such sale or other disposition includes any Collateral (other than Inventory or Accounts), then the portion of the Net Cash Proceeds attributable to such other Collateral shall be applied, first, to the outstanding principal amount of the Term Loans until paid in full, and second, at Borrowers’ option, to either (x) the outstanding principal amount of the Term B Loan, or (y) the outstanding principal amount of the Revolving Loans so long as (in the case of this clause (y) only) Agent establishes and maintains a permanent Reserve in an amount equal to the amount of such Net Cash Proceeds that are so applied to the prepayment of the Revolving Loans.
(iii) Upon the sale or other disposition of the Capital Stock of Indiana Tube Denmark as permitted in Section 9.7(b)(v) hereof, Borrowers shall immediately prepay the Obligations and the Term B Loan Debt in an amount equal to fifty (50%) percent of the Net Cash Proceeds received by H&H International in connection with such sale or other disposition as follows:
(A) if such sale or other disposition includes Inventory or Accounts, then the portion of the Net Cash Proceeds from such sale or other disposition attributable to such Inventory or Accounts shall be applied, first, to the outstanding principal amount of the Revolving Loans until paid in full, second, to the outstanding principal amount of the Term Loans until paid in full, and third, to the outstanding principal amount of the Term B Loan until paid in full; and
(B) if such sale or other disposition includes any Collateral (other than Inventory or Accounts), then the portion of the Net Cash Proceeds attributable to such other Collateral shall be applied, first, to the outstanding principal amount of the Term Loans until paid in full, and second, at Borrowers’ option, to either (x) the outstanding principal amount of the Term B Loan, or (y) the outstanding principal amount of the Revolving Loans so long as (in the case of this clause (y) only) Agent establishes and maintains a permanent Reserve in an amount equal to the amount of such Net Cash Proceeds that are so applied to the prepayment of the Revolving Loans.
(iv) The provisions of this subsection (c) shall not be deemed to be implied consent to any such issuance, incurrence or sale otherwise prohibited by the terms and conditions of this Agreement.
(d) All prepayments of the Term Loans under this Section 2.4 shall be applied against the remaining installments (if any) of principal due on the Term Loans in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal maturity. Notwithstanding anything to the Term Loan Collateral Amount contrary in this Section 2.4, all prepayments of principal under this Section 2.4 shall be made together with accrued and (y) second, unpaid interest thereon to the remaining Advances (including cash collateralization date of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofprepayment.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Loan and Security Agreement (Handy & Harman Ltd.), Loan and Security Agreement (WHX Corp)
Mandatory Prepayments. (ai) When any The Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 shall prepay the Advances on each Payment Date in the aggregate in any fiscal year, other than Inventory manner and to the extent provided in the Ordinary Course Priority of Payments.
(ii) [Reserved].
(iii) Notwithstanding anything to the contrary herein, if any Monthly Report or Payment Date Report shows that the Foreign Currency Advance Amount at such time exceeds the Non-Dollar Sublimit then in effect, then, within five (5) Business Days of delivery of such Monthly Report or Dispositions otherwise permitted under Section 7.1Payment Date Report, Borrowers as applicable, the Borrower shall repay prepay Advances in an aggregate amount sufficient to reduce the Foreign Currency Advance Amount as of such date of payment to an amount not to exceed 100% of the Non-Dollar Sublimit then in effect. The Borrower may (A) prepay the Advances in such aggregate amount and (B) simultaneously borrow new Advances denominated in Dollars hereunder in an amount equal to the Net Disposition Proceeds Dollar Equivalent of such salerepayment; provided that with respect to subclauses (A) and (B), such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the Dollar Equivalent of the aggregate outstanding principal installments amount of the Term Loan in the inverse order Advances does not exceed 100% of the maturities thereofMaximum Facility Amount, and (y) secondthe prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the remaining extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (z) the Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the new Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit are held ratably by the Lenders in accordance with the provisions respective Percentage of Section 3.2(bsuch Lenders (after giving effect to such prepayment), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(biv) Notwithstanding In connection with any prepayment pursuant to clause (ii) or (iii) above, the foregoingBorrower shall deliver to the Collateral Agent, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing the Lenders and the Borrowing Administrative Agent shall have notified Agent within a Notice of Prepayment not later than 2:00 p.m. New York City time two (2) Business Days following receipt prior to the date of such Net Disposition Proceeds prepayment. The Administrative Agent shall promptly notify the Lenders of such Notice of Prepayment. Each such Notice of Prepayment shall specify the portion of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to outstanding principal balance and the business currency of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds Advance that shall be applied by Agent to the Revolving Advances prepaid and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment be irrevocable and the reserve with respect to such amount shall be released effective upon receipt and shall be available to Borrowers as dated the date such notice is being given, signed by a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release Responsible Officer of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) Borrower and otherwise appropriately completed. If a Notice of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited Prepayment is given by the terms Borrower, the Borrower shall make such prepayment and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding payment amount of the Term Loans specified in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount notice shall be applied to due and payable on the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statementsdate specified therein.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Fidelity Private Credit Fund), Revolving Credit and Security Agreement (Fidelity Private Credit Fund)
Mandatory Prepayments. (a) When If at any time the amount equal to the sum of (i) the outstanding principal amount of all Revolving Credit Loan Advances and the Swing Loan Advances, plus (ii) the Letter of Credit Liabilities, exceeds the Revolving Credit Commitments, the Borrower sells shall promptly prepay Revolving Credit Loan Advances, Swing Loan Advances and the Letter of Credit Disbursements by the amount of the excess or, if no Revolving Credit Loan Advances, Swing Loan Advances or otherwise disposes Letter of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in Credit Disbursements are outstanding, the aggregate in any fiscal year, Borrower shall immediately pledge to the Agent cash or Cash Equivalent Investments (subject to no other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Liens) in an amount equal to the Net Disposition Proceeds excess as security for the Obligations. Any such mandatory prepayments shall be applied first to the Term Loan, then to the Swing Loan Advances, then to Letter of such saleCredit Disbursements for which the Issuing Bank has not been reimbursed by the Borrower, such repayments then to be made promptly but in no event more than three (3) Business Days following receipt of such net proceedsBase Rate Advances under the Revolving Credit Loan, then to Eurodollar Advances under the Revolving Credit Loan, and until then to the remaining Letter of Credit Liabilities. Any prepayments hereunder shall be accompanied with accrued and unpaid interest on the amount prepaid to the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofprepayment.
(b) Notwithstanding After any reduction in the foregoingRevolving Credit Commitments pursuant to Section 2.12, the Borrower shall promptly prepay the outstanding Revolving Credit Loan Advances and Swing Loan Advances by the amount which the sum of the outstanding principal amount of the Advances under the Revolving Credit Loan and the Swing Loan plus the Letter of Credit Liabilities exceeds the Revolving Credit Commitments, as reduced.
(c) Upon the Disposition of any assets (other than Dispositions of equity interests or Dispositions of assets permitted under Sections 9.8(a) and (d)), the Borrower shall promptly prepay the Advances by an amount equal to the Net Proceeds of such Disposition; provided however, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment Dispositions permitted under Section 2.20(aSections 9.8(b), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers and (e), the Borrower shall promptly prepay the outstanding amount of the Term Loans in Advances by an amount equal to twenty-five percent the Net Proceeds of such Disposition to the extent such amount exceeds either (25%i) of Excess Cash Flow $2,000,000 per Disposition or (ii) $6,000,000 in the aggregate for each fiscal year beginning with all Dispositions which have occurred since the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for date hereof. Any such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount mandatory prepayments shall be applied first to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Swing Loan Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) to Letter of such net cash proceeds received from Credit Disbursements for which the issuance of Equity Interests shall be applied (x) firstIssuing Bank has not been reimbursed by the Borrower, then to the outstanding principal installments of Base Rate Advances under the Term Loan in Revolving Credit Loan, then to Eurodollar Advances under the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount Revolving Credit Loan, and (y) second, then to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters Letter of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments Liabilities. Any prepayments hereunder shall be applied accompanied with accrued and unpaid interest on the amount prepaid to cash collateralize any Obligations related to outstanding Letters the date of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofprepayment.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Credit Agreement (Ezcorp Inc), Credit Agreement (Ezcorp Inc)
Mandatory Prepayments. (ai) When any Borrower sells or otherwise disposes Asset Dispositions (other than an Event of Loss). Upon the occurrence of any Collateral resulting in Net Asset Disposition Proceeds in excess other than an Event of $500,000 in Loss, the Borrower shall prepay the Loans and the aggregate unpaid amount of all Letter of Credit Obligations owing with respect to such Letters of Credit at such time or cash collateralize, at 100% of the face amount thereof, the Letters of Credit, in any fiscal yearaccordance with Section 2.06(b)(vi), other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the 100% of any Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than within three (3) Business Days following of receipt thereof by the Borrower or any Restricted Subsidiary; provided, however, that, at the election of the Borrower (as notified by the Borrower to the Administrative Agent within three Business Days of receipt of such net proceedsNet Proceeds), and until so long as no Default shall have occurred and be continuing, the date Borrower or any Restricted Subsidiary may, within 365 days after the receipt of paymentsuch Net Proceeds, use any such proceeds (A) to invest in operating assets of the Borrower and the Restricted Subsidiaries, (B) to acquire all or substantially all of the assets of, or any Equity Interests of, any Person which if it were a Restricted Subsidiary would be considered to be engaged in a Permitted Business, provided that, after giving effect to such acquisition of Equity Interests, such proceeds Person is or becomes a Restricted Subsidiary, (C) to make Capital Expenditures for the Borrower or any Restricted Subsidiary or (D) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Permitted Business of the Borrower or the Restricted Subsidiaries; provided that such Net Proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited a segregated bank account designated by the terms Collateral Agent subject to an Account Control Agreement until such time as they are used to prepay the Loans and conditions hereof. Such repayments shall be applied (x) firstthe aggregate unpaid amount of all Letter of Credit Obligations owing with respect to such Letters of Credit at such time or cash collateralize, to the outstanding principal installments at 100% of the Term Loan in the inverse order of the maturities face amount thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last2.06(b)(vi) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances and/or are used in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under this Section 2.20(a2.06(b)(i), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements any Net Proceeds are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by used in accordance with this Section 2.20(c), subject 2.06(b)(i) by the Borrower prior to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver earlier of any rights Agent or Lenders may have as a result (A) the last day of such 365 day period and (B) the date of the failure by Borrowers to deliver such financial statements.
(d) In occurrence of a Default, the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after Borrower shall immediately prepay the receipt by Borrowers of Loans and the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an aggregate unpaid amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Letter of Credit Obligations relating owing with respect to any outstanding such Letters of Credit in accordance with at such time or cash collateralize, at 100% of the provisions of Section 3.2(b)face amount thereof, provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding the Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with on the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice last day of such issuance of Equity Interestsperiod (or such earlier date, and Agent in its sole discretion, within such ten (10as the case may be) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.62.06(b)(vi).
Appears in 2 contracts
Samples: Credit Agreement (Vantage Drilling International), Credit Facility Agreement
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes On the date of any Collateral resulting termination or reduction of the Commitments pursuant to Section 2.05, the Borrower shall pay or prepay for the ratable accounts of the Lenders so much of the principal amount outstanding under this Agreement as shall be necessary in Net Disposition Proceeds in excess order that the principal amount outstanding (after giving effect to such prepayment) will not exceed the amount of $500,000 Commitments following such termination or reduction, together with (A) accrued interest to the date of such prepayment on the principal amount repaid or prepaid and (B) in the aggregate in case of prepayments of Eurodollar Rate Advances, Adjusted CD Rate Advances or B Advances, any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal payable to the Net Disposition Proceeds of such sale, such repayments Lenders pursuant to Section 8.04(b).
(b) All prepayments required to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed pursuant to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments this Section 2.12 shall be applied by the Agent as follows: (xi) first, to the outstanding principal installments prepayment of the Term Loan in A Advances (without reference to minimum dollar requirements), applied to outstanding Base Rate Advances up to the inverse order full amount thereof before they are applied to the ratable prepayment of the maturities thereof, Eurodollar Rate and Adjusted CD Rate Advances; and (yii) second, to the remaining prepayment of the B Advances (including cash collateralization of all Obligations relating without reference to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(bminimum dollar requirements), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with ratably among all the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentLenders holding B Advances.
(c) Borrowers shall prepay the outstanding amount In lieu of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31prepaying any Eurodollar Rate Advances, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in Adjusted CD Rate Advances or B Advances under any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness provision (other than Permitted IndebtednessSections 2.14 and 6.01) of this Agreement, the Borrower may, upon notice to the Agent, deliver such funds to the Agent, to be held as additional cash collateral securing the obligations hereunder and under the Notes. The Agent shall deposit all amounts delivered to it in a non-interest-bearing special purpose cash collateral account, to be governed by Borrowersa cash collateral agreement in form and substance satisfactory to the Borrower and the Agent, Borrowers shall, no later than three (3) Business Days after and shall apply all such amounts in such account against such Advances on the receipt by Borrowers last day of the cash proceeds from Interest Period therefor. The Agent shall promptly notify the Lenders of any such issuance or incurrence of Indebtedness, repay election by the Advances in an amount equal Borrower to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, deliver funds to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and Agent under this subsection (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(bc), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Credit Agreement (Ies Utilities Inc), Credit Agreement (Ies Utilities Inc)
Mandatory Prepayments. (a) When Subject to Section 4.3 hereof, when any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Business, Borrowers shall repay the Advances Advances, subject to the right to reborrow hereunder, in an amount equal to the Net Disposition Proceeds net proceeds of such salesale (i.e., gross proceeds less the reasonable costs of such sales or other dispositions), such repayments to be made promptly but in no event more than three one (31) Business Days Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for AgentAgent pursuant to an express trust hereby, separate and segregated from all other funds, assets and property of Borrowers. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments Repayments under this paragraph (a) shall be applied (x) first, to the outstanding principal installments balance of the Term Loan Revolving Advances and Swing Loans (in the inverse order of the maturities thereof, determined by Agent) and (y) second, to be held by Agent as cash collateral to the remaining Advances (including cash collateralization extent of all Obligations relating to any outstanding Letters Letter of Credit Obligations, provided that, after the occurrence and during the continuance of an Event of Default, such repayments shall be applied to the Advances and the other Obligations in such order as Agent may determine in its sole discretion.
(b) Upon either (i) the issuance and/or incurrence of any Indebtedness for borrowed money (other than Indebtedness permitted in accordance with the provisions of Section 3.2(b7.8) by any Borrower or (ii) the issuance of any additional Equity Interests (other than Equity Interests issued to employees, officers or directors of any Borrower) or receipt of any additional capital contributions by any Borrower, Borrowers shall repay the Advances, subject to the right to reborrow hereunder, in an amount equal to the net cash proceeds of such issuance, incurrence and/or capital contribution (i.e., gross proceeds less the reasonable costs of such issuance, incurrence and/or capital contribution), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall to be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) made promptly but in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
no event more than one (b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (21) Business Days Day following receipt of such Net Disposition Proceeds net cash proceeds, and until the date of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of payment, such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds proceeds shall be applied by held in trust for Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount an express trust hereby, separate and segregated from all other funds, assets and property of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestmentBorrowers. The foregoing shall not be deemed to be implied consent to any Disposition such issuance and/or incurrence of Indebtedness or other transaction issuance of additional Equity Interests otherwise prohibited by the terms and conditions hereof (to the extent, if any, of any such prohibition contained herein). Repayments under this Agreement or any Other Document.
subparagraph (cb) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments balance of the Term Loan Revolving Advances and Swing Loans (in the inverse order of the maturities thereof determined by Agent) and (y) second, to be held by Agent as cash collateral to the remaining Advances (including cash collateralization extent of all Obligations relating to any outstanding Letters Letter of Credit in accordance with the provisions of Section 3.2(b)Obligations, provided however that if no Default or that, after the occurrence and during the continuance of an Event of Default has occurred and is continuingDefault, such repayments shall be applied to cash collateralize any the Advances and the other Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Green Plains Inc.), Revolving Credit and Security Agreement (Green Plains Renewable Energy, Inc.)
Mandatory Prepayments. (a) When If at any Borrower sells or otherwise disposes time any of any Collateral resulting in Net Disposition Proceeds in excess the Availability Requirements fail to be satisfied (except as the result of $500,000 in the aggregate in any fiscal yearmaking of a Protective Advance, other than Inventory in unless requested by the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Administrative Agent), then, the applicable Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of promptly prepay Loans and Cash Collateralize L/C Obligations (it being understood that any such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall L/C Obligations so Cash Collateralized will not be deemed to be implied consent to any such sale otherwise prohibited by outstanding for purposes of this Section 5.2(a)) so that the terms and conditions hereof. Such repayments shall Availability Requirements will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofsatisfied.
(b) Notwithstanding At all times following the foregoingestablishment of the Cash Management Systems for the relevant jurisdiction pursuant to Section 9.16 and during the Cash Dominion Period (subject to the provisions of the Security Documents), on each Business Day, at or before 1:00 p.m. (local time), the Administrative Agent shall apply all immediately available funds credited to any Concentration Account, (i) with respect to any Net Disposition Proceeds which would otherwise give rise Concentration Account of any U.S. Credit Party, first to pay any fees or expense reimbursements then due to the Administrative Agent, the Collateral Agent, each U.S. L/C Issuer, and the U.S. Revolving Credit Lenders hereunder, in each case in their capacity as such, pro rata, second to pay interest due and payable in respect of any Loans (including U.S. Swing Line Loans and U.S. Protective Advances) of the Parent Borrower that may be outstanding, pro rata, third to prepay the principal of any U.S. Protective Advances to the Parent Borrower that may be outstanding, pro rata and fourth to prepay the principal of the U.S. Revolving Credit Loans and U.S. Swing Line Loans to the Parent Borrower and to Cash Collateralize U.S. L/C Obligations of the Parent Borrower, pro rata and (ii) with respect to any Concentration Account of any Foreign Borrower, first to pay any fees or expense reimbursements then due to the Administrative Agent, the Collateral Agent, each Foreign L/C Issuer, and the Foreign Revolving Credit Lenders hereunder, in each case in their capacity as such, pro rata, second to pay interest due and payable in respect of any Loans (including Foreign Swing Line Loans and Foreign Protective Advances) of such Borrower that may be outstanding, pro rata, third to prepay the principal of any Foreign Protective Advances to such Borrower that may be outstanding, pro rata and fourth to prepay the principal of the Foreign Revolving Credit Loans and Foreign Swing Line Loans to such Borrower and to Cash Collateralize Foreign L/C Obligations of such Borrower, pro rata, fifth to pay interest due and payable in respect of any remaining Loans (including Swing Line Loans and Protective Advances) of the Foreign Borrowers that may be outstanding, pro rata, sixth to prepay the principal of any remaining Foreign Protective Advances that may be outstanding, pro rata and seventh to prepay the principal of any remaining Foreign Revolving Credit Loans and Foreign Swing Line Loans and to Cash Collateralize any remaining Foreign L/C Obligations, pro rata; provided that, at any time that a certificate is delivered or comes into effect pursuant to Section 14.2(c) with respect to a prepayment under Section 2.20(a), German Borrower (and for so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of any such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds certificate is in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve effect with respect to such amount German Borrower, unless and until otherwise ordered by a court of competent jurisdiction), funds credited to any Concentration Account of such German Borrower shall only be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect applied pursuant to the release first through the fourth sub-clauses above of the reserve for such amount) to cause such Revolving Advances to be made, this clause (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document).
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Abl Credit Agreement (Avaya Holdings Corp.), Abl Credit Agreement (Avaya Holdings Corp.)
Mandatory Prepayments. (a) When If at any time, the aggregate outstanding principal amount of the Term Loans exceeds the Term Loan Maximum Amount at such time, Borrowers shall, on the sooner of Agent’s demand or the first Business Day after any Borrower sells or otherwise disposes of any Collateral resulting has knowledge thereof, repay the outstanding Term Loans in Net Disposition Proceeds in excess of $500,000 in an amount sufficient to cause the aggregate outstanding principal amount of the Term Loans to be less than or equal to the Term Loan Maximum Amount then in effect.
(b) Concurrently with any fiscal year, other than Inventory in the Ordinary Course Permitted Asset Disposition of Business or Dispositions otherwise permitted under Section 7.1Other Collateral, Borrowers shall repay the Advances prepay Term Loans in an amount equal to the Net Disposition Proceeds of such saledisposition; provided, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceedsthat, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if so long as no Default or Event of Default has occurred and is continuing, Net Proceeds from any single such repayments Asset Disposition in an amount not in excess of $2,000,000 shall not be required to be so applied to cash collateralize any Obligations related the extent Borrowers deliver to outstanding Letters Agent a certificate stating that Obligors intend to use such Net Proceeds to acquire assets that are used or useful in the business of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with Obligors within 180 days of the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds, it being expressly agreed that all such Net Proceeds of not so reinvested shall be immediately applied to prepay the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion Loans upon the expiration of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document180 day period.
(c) Concurrently with the receipt of any proceeds of insurance or condemnation or expropriation awards paid in respect of any Other Collateral, Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c)proceeds, subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statementsSection 8.6.2.
(d) In the event of Concurrently with any issuance or other incurrence of Indebtedness Debt by an Obligor (other than Permitted Indebtedness) by BorrowersDebt permitted under Section 10.2.1), Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances Borrower shall prepay Term Loans in an amount equal to one hundred percent (100.00%) of such cash the net proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofDebt.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted AcquisitionsOn the Revolver Termination Date, Borrowers shall provide Agent within ten prepay all Term Loans (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(bunless sooner repaid hereunder), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Loan and Security Agreement (Summer Infant, Inc.), Loan and Security Agreement (Summer Infant, Inc.)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash xxxx collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Revolving Credit, Term Loan, Guaranty and Security Agreement (Dril-Quip Inc), Revolving Credit, Term Loan, Guaranty and Security Agreement (Innovex Downhole Solutions, Inc.)
Mandatory Prepayments. Borrower shall be required to make mandatory prepayments of the Term Loans upon each of the following:
(ai) When the receipt by Borrower or any Borrower sells or otherwise disposes of its Affiliates of any Collateral resulting damages or other amounts from Equipment Supplier under an Equipment Supply Agreement (including as a result of a delayed delivery pursuant to Section 4 of such Equipment Supply Agreement and as a result of any cancellation by Equipment Supplier pursuant to Section 19 of such Equipment Supply Agreement), in Net Disposition Proceeds an amount equal to (A) during the continuance of any Default or Event of Default, the amount of such damages or other amounts, or (B) so long as there is not continuing any Default or Event of Default, such portion of the amount of such damages as Hermes Agent (at the instruction of Hermes) shall designate in excess writing as the amount (if any) of $500,000 the Term Loans no longer eligible for coverage under the Hermes Export Credit Guarantee Documents as a result of such payment of amounts by Equipment Supplier to Borrower;
(ii) any failure of the Hermes Export Credit Guarantee Documents to be effective with respect to any portion of the Term Loans, in an amount equal to such portion of the aggregate in Term Loans; and
(iii) the refund to Borrower of any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Hermes Guarantee Fees by Hermes in an amount equal to the Net Disposition Proceeds Hermes Guarantee Fee Refund. Any such prepayment (including any deemed prepayment with the Hermes Guarantee Fee Refund made in accordance with 2.6.1) shall (A) include payment by Borrower of accrued and unpaid interest on the Term Loans being prepaid and any fees, breakage costs and other charges payable in connection with such salea prepayment under the terms of this Agreement (including Section 3.7), such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceedsif any, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall (B) be applied to remaining amortization payments and the payments at final maturity thereof (x1) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default maturity or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt on a pro rata basis, at the option of such Net Disposition Proceeds Hermes Agent (acting at the instruction of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(viHermes). Borrowers Amounts prepaid as mandatory prepayments of Term Loans may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Documentre-borrowed.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Credit Agreement (Foresight Energy LP), Credit Agreement (Foresight Energy Partners LP)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes In the event and on each date the Dollar Equivalent of the aggregate principal amount of Revolving Credit Outstandings exceeds the aggregate Revolving Loan Cap (other than as a result of a Protective Advance permitted pursuant to Section 2.1(a)(ii)), the Borrowers shall on each such date prepay an amount equal to such excess which shall be applied as follows: first, to prepay the Swing Loans until paid in full, second, to prepay the Revolving Loans until paid in full (without a reduction in the Revolving Credit Commitments), third, to the extent of any Collateral resulting in Net Disposition Proceeds in excess remaining excess, to Cash Collateralize the Letter of $500,000 Credit Obligations in the aggregate manner set forth in Section 10.5 in an amount equal to 103% of such excess and fourth, to the extent after giving effect to any fiscal yearsuch prepayments and provision of Cash Collateral, other than Inventory the FILO Outstandings exceed the FILO Borrowing Base, to prepay FILO Outstandings in an amount equal to such excess; provided that, in the Ordinary Course event any such prepayment requirement arises as a result of fluctuations in currency exchange rates, such prepayment shall be made by the Borrowers within one (1) Business Day after the Administrative Agent notifies the Borrowers thereof.
(b) If (x) at any time during a Cash Dominion Period or Dispositions otherwise permitted under Section 7.1(y) in respect of any Disposition that would result in the occurrence of a Cash Dominion Period, any Loan Party or any of its Restricted Subsidiaries receives any Net Cash Proceeds arising from any Disposition in respect of any Current Asset Collateral outside of the ordinary course of business, the Borrowers shall repay immediately prepay the Advances Loans and Cash Collateralize Letters of Credit (in an amount equal to up to 103% of the aggregate Stated Amount of such Letters of Credit) in accordance with Section 2.9(d), (i) in the case of clause (x) above, in amount equal to 100% of such Net Cash Proceeds arising from any such Disposition, and (ii) in the case of clause (y) above, in an amount equal to the Net Disposition Proceeds of such sale, such repayments amount required to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to prevent a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentCash Dominion Period from occurring.
(c) Borrowers Subject to Section 3.6, all such payments in respect of the Loans pursuant to this Section 2.9 shall prepay be without premium or penalty. All interest accrued on the outstanding principal amount of the Term Loans paid pursuant to this Section 2.9 shall be paid, or may be charged by the Administrative Agent to any loan account(s) of the Borrowers, at the Administrative Agent’s option, on the date of such payment. Interest shall accrue and be due, until the next Business Day, if the amount so paid by the Borrowers to the bank account designated by the Administrative Agent for such purpose is received in such bank account after 3:00 p.m.
(d) All amounts received pursuant to Section 2.9(b) and, at all times after the occurrence and during the continuance of a Cash Dominion Period and notification thereof by the Administrative Agent to the Borrowers (subject to the provisions of Section 10.3), on each Business Day, at or before 3:00 p.m., all Same Day Funds credited to any Concentration Account shall, in each case, be applied by the Administrative Agent in the following order: first, to prepay the Swing Loans until paid in full, second, to prepay the Revolving Loans until paid in full (without a reduction in the Revolving Credit Commitments), third, to Cash Collateralize the Letter of Credit Obligations in the manner set forth in Section 10.5 in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in 103% and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) firstfourth, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofprepay FILO Outstandings.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Credit Agreement (Signet Jewelers LTD), Credit Agreement (Signet Jewelers LTD)
Mandatory Prepayments. (ai) When If at any time the outstanding principal amount of all Revolver Loans plus the sum of all outstanding Swingline Loans and LC Exposure exceeds the then available Aggregate Maximum Revolver Amount, the Borrower sells or otherwise disposes agrees to repay immediately upon notice from the Administrative Agent, by payment to the Administrative Agent for the account of the Lenders, an amount equal to such excess with each such repayment applied first to the principal amount of outstanding Swingline Loans, second to the principal amount of outstanding Revolver Loans and third, with respect to any Collateral resulting in Net Disposition Proceeds in excess Letters of $500,000 in Credit then outstanding, a payment of cash collateral into a cash collateral account opened by the aggregate in any fiscal yearAdministrative Agent, other than Inventory in for the Ordinary Course benefit of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Lenders in an amount equal to the Net Disposition Proceeds aggregate then undrawn and unexpired amount of such sale, Letters of Credit (such repayments cash collateral to be applied in accordance with Section 2.09(b)).
(ii) The Borrower shall prepay the Loans in the manner set forth in clause (vi) below in amounts equal to one hundred percent (100%) of the aggregate Net Cash Proceeds from any Debt Issuance by the Borrower or any of its Subsidiaries or other Debt not permitted pursuant to this Agreement. Such prepayment shall be made promptly but in no event more than three within five (35) Business Days following receipt of such net proceeds, and until after the date of paymentreceipt of Net Cash Proceeds of any such transaction.
(iii) The Borrower shall prepay the Loans in the manner set forth in clause (vi) below in amounts equal to fifty percent (50%) (or if the Borrower’s Leverage Ratio is less than 5.0:1.0, such proceeds 0%) of the aggregate Net Cash Proceeds from any Equity Offering by or capital contribution to the Borrower or any of its Subsidiaries other than (a) the exercise price on stock options issued as part of employee compensation and (b) the Equity Issuance. Such prepayment shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to made within five (5) Business Days after the date of receipt of Net Cash Proceeds of any such sale otherwise prohibited transaction.
(iv) The Borrower shall prepay the Loans in the manner set forth in clause (vi) below in amounts equal to one hundred percent (100%) of the aggregate Net Cash Proceeds from any Disposition by the terms and conditions hereofBorrower or any of its Subsidiaries. Such repayments prepayments shall be applied made within five (x5) firstBusiness Days after receipt of Net Cash Proceeds of any such transaction by the Borrower or any of its Subsidiaries; provided that, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if so long as no Default or Event of Default has occurred and is continuing, such repayments no prepayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit lastrequired hereunder (A) in such order as Agent may determine, subject connection with up to Borrowers’ ability $50,000,000 of aggregate Net Cash Proceeds in any fiscal year from Dispositions (other than any Disposition pursuant to re-borrow Revolving Advances in accordance with the terms hereof.
of the Pioneer Option Agreement) by the Borrower or any of its Subsidiaries which is reinvested within three hundred sixty (b360) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following days after receipt of such Net Disposition Cash Proceeds of by the applicable Loan Party’s or its Subsidiary’s election to reinvest all Borrower or any portion of such Net Disposition Proceeds its Subsidiaries in fixed similar replacement assets, or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds (B) in connection with Dispositions permitted pursuant to Section 2.1(a)(y)(vi9.17 (other than Section 9.17(f). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document).
(cv) Borrowers The Borrower shall prepay the outstanding amount of the Term Loans in an amount the manner set forth in clause (vi) below in amounts equal to twenty-five one hundred percent (25100%) of Excess the aggregate Net Cash Flow for each fiscal year beginning with Proceeds from any Insurance and Condemnation Event by the fiscal year ending December 31, 2022, payable upon delivery Borrower or any of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofits Subsidiaries. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts Such prepayments shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than within three (3) Business Days after the receipt by Borrowers of the cash proceeds from Net Cash Proceeds of any such issuance transaction by the Borrower or incurrence any of Indebtednessits Subsidiaries; provided that, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if so long as no Default or Event of Default has occurred and is continuing, such repayments no prepayments shall be applied required hereunder in connection with up to cash collateralize $50,000,000 of aggregate Net Cash Proceeds in any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year from Insurance and Condemnation Events by the Borrower or any of its Subsidiaries which is reinvested within three hundred sixty (iii360) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice days after receipt of such issuance Net Cash Proceeds by the Borrower or any of Equity Interests, and Agent its Subsidiaries in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofsimilar replacement assets.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Atlas Pipeline Holdings, L.P.), Revolving Credit and Term Loan Agreement (Atlas Pipeline Partners Lp)
Mandatory Prepayments. (a) When Within three Business Days of receipt by the Borrower or any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds its Subsidiaries of proceeds in excess of $500,000 25,000 of any sale or disposition by the Borrower or such Subsidiary of any of its assets (excluding (i) sales of inventory in the aggregate in any fiscal yearordinary course of business, other than Inventory in (ii) sales of worn-out, surplus or obsolete equipment, (iii) sales of assets the Ordinary Course proceeds of Business which are invested or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments committed to be made promptly but in no event more than three invested into the businesses of the Borrower and its Subsidiaries within 180 days after such assets are sold, (3iv) Business Days following receipt insurance proceeds (less any costs of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed recovery) which are invested or committed to be implied consent to any such sale otherwise prohibited by invested into the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments business of the Term Loan Borrower and its Subsidiaries within 180 days of receipt, (v) sales or liquidations of Permitted Investments, (vi) sales of accounts receivable in the inverse order of the maturities thereof, connection with settlement or collection and (yvii) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if so long as no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters other sales of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds assets of the applicable Loan Party’s or its Subsidiary’s election to reinvest all Borrower or any portion of such Net Disposition Proceeds its Subsidiaries with an aggregate book value not to exceed $5,000,000 in fixed or capital assets or other assets useful to any Fiscal Year) the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers Borrower shall prepay the outstanding amount of the Term Loans in an amount equal to twentyall such proceeds, net of commissions and other reasonable, taxes, reserves for purchase price adjustments and post-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interestsclosing obligations, and Agent customary transaction costs, fees and expenses properly attributable to such transaction and payable by such Borrower in its sole discretionconnection therewith (in each case, within paid to non-Affiliates). Any such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property prepayment shall be applied in accordance with Section 6.62.13(d).
(b) If the Borrower or any of its Subsidiaries issues any debt or equity securities (other than Indebtedness permitted under Section 7.1, equity securities issued by a Subsidiary of the Borrower to the Borrower or another Subsidiary or equity securities transferred or allocated to the Borrower’s ESOP or stock option plans) then no later than three Business Days following the date of receipt of the proceeds thereof, Borrower shall prepay the Loans in an amount equal to 50%, in the case of equity securities, and 100% in the case of debt securities, of all such proceeds, net of underwriting discounts and commissions and other reasonable costs paid to non-Affiliates in connection therewith. Any such prepayment shall be applied in accordance with Section 2.13(d).
(c) Intentionally deleted.
(d) Amounts to be applied in connection with prepayments made pursuant to Sections 2.13(a) or (b) shall be applied first, to Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents; second, to all other fees and reimbursable expenses of the Lenders and the Issuing Bank then due and payable pursuant to any of the Loan Documents; third, to interest then due and payable on the Loans; fourth, to the principal balance of the Term Loans, until the same shall have been paid in full; fifth, to the principal balance of the Swingline Loans, until the same shall have been paid in full, to the Swingline Lender; sixth, to the principal balance of the Revolving Loans, until the same shall have been paid in full, and seventh, to cash collateralize the Letters of Credit in accordance with Section 2.23(g) in an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon. The Revolving Commitments of the Lenders shall not be permanently reduced by the amount of any prepayments made pursuant this the Section 2.13(d).
(e) If at any time the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to Section 2.9 or otherwise, the Borrower shall immediately repay Swingline Loans and Revolving Loans in an amount equal to such excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.20. Each prepayment shall be applied first to the Swingline Loans to the full extent thereof, second to the Base Rate Loans to the full extent thereof, and finally to Eurodollar Loans to the full extent thereof. If after giving effect to prepayment of all Swingline Loans and Revolving Loans, the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Issuing Bank and the Lenders, an amount in cash equal to such excess plus any accrued and unpaid fees thereon to be held as collateral for the LC Exposure. Such account shall be administered in accordance with Section 2.23(g) hereof.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Stanley, Inc.), Revolving Credit and Term Loan Agreement (Stanley, Inc.)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes Without limiting the requirements of Section 7.5 hereof regarding the consent of Majority Lenders to sales of property by Restricted Persons which are not permitted by Section 7.5, the proceeds of any Collateral resulting in Net Disposition Proceeds in excess sale of $500,000 property (net of all reasonable costs and expenses, but excluding proceeds consisting of tangible property to be used in the aggregate in business of Restricted Persons) by any fiscal year, Restricted Person (other than Inventory in the Ordinary Course a sale of Business or Dispositions otherwise property permitted under Section 7.17.5 hereof) shall be placed in a collateral account under the control of Administrative Agent in a manner satisfactory to Administrative Agent immediately upon such Restricted Person's receipt of such proceeds and maintained therein for a period of ninety (90) days following the date of receipt thereof in cash (in this Section 2.7(a) referred to as the "Collateral Period"). If any consideration consists of an instrument or security, Borrowers the Collateral Period shall, with respect to each amount of cash received in respect thereof, continue until ninety (90) days following such Restricted Person's receipt of such cash unless, pursuant to the following sentence, an approved investment included such cash; any cash in a collateral account may be invested in Cash Equivalents designated by Borrower. During each Collateral Period, Borrower may propose to invest such proceeds in other property subject to the approval of Majority Lenders, and shall repay thereafter invest such proceeds in such property so approved by Majority Lenders. At the Advances in end of each Collateral Period or, if an investment is so proposed and approved during such Collateral Period, within one hundred-eighty (180) days after such proposed investment has been so approved by Majority Lenders, any such proceeds which have not been so invested by Borrower shall be applied pro rata to the reduction of the outstanding principal balance of the Term Loans and the Revolver Loans at such time, and the Revolver Commitment shall be reduced by an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be prepayment applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofRevolver Loans.
(b) Notwithstanding If at any time the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise Facility Usage exceeds the Revolver Commitment (whether due to a prepayment under Section 2.20(areduction in the Revolver Commitment in accordance with this Agreement, or otherwise), so long as no Event of Default Borrower shall have occurred and be continuing and immediately upon demand prepay the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds principal of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Revolver Loans in an amount at least equal to twenty-five percent (25%) such excess. Each prepayment of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount principal under this section shall be applied accompanied by all interest then accrued and unpaid on the principal so prepaid. Any principal or interest prepaid pursuant to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts this section shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interestsaddition to, and Agent not in its sole discretionlieu of, within such ten (10) day period, may request an appraisal of Equipment and Real Property all payments otherwise required to determine if be paid under the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount Documents at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofprepayment.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Credit Agreement (Plains All American Pipeline Lp), Credit Agreement (Plains All American Pipeline Lp)
Mandatory Prepayments. (ai) When If at any time, (i) the aggregate German Revolving Credit Exposure of all Revolving Credit Lenders (excluding the L/C Obligations under any Letters of Credit issued for the account of the German Borrower sells to the extent such L/C Obligations are Cash Collateralized in accordance with this Agreement or otherwise disposes backstopped to the reasonable satisfaction of the Administrative Agent) exceeds the German Borrowing Base, (ii) the aggregate Maltese Revolving Credit Exposure of all Revolving Credit Lenders (excluding the L/C Obligations under any Collateral resulting Letters of Credit issued for the account of the Maltese Borrower to the extent such L/C Obligations are Cash Collateralized in Net Disposition Proceeds in excess accordance with this Agreement or backstopped to the reasonable satisfaction of $500,000 the Administrative Agent) exceeds the Maltese Borrowing Base or (iii) the aggregate Revolving Credit Exposure of all the Revolving Credit Lenders exceeds the Maximum Credit, then the applicable Borrower or the Borrowers shall within one Business Day, upon notification by the Administrative Agent, prepay the Swing Line Loans, first, and the other Loans, second, and then Cash Collateralize, in the aggregate amount required by Section 2.03(f), the Letters of Credit then outstanding, in any fiscal year, other than Inventory each case in the Ordinary Course amount and in the manner required to eliminate such excess; provided that nothing in this clause (b)(i) shall reduce the Revolving Credit Commitments.
(ii) Subject to Section 3.05, all such payments in respect of Business the Loans pursuant to this Section 2.05 shall be without premium or Dispositions otherwise permitted under penalty. All interest accrued on the principal amount of the Loans paid pursuant to this Section 7.12.05 shall be paid, Borrowers shall repay or may be charged by the Advances in an amount equal Administrative Agent to any loan account(s) of the Net Disposition Proceeds of such saleBorrowers, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceedsat the Administrative Agent’s option, and until on the date of such payment.
(iii) At all times after the occurrence and during the continuance of a Cash Dominion Period and notification thereof by the Administrative Agent to the Borrowers, such proceeds on each Business Day, the Administrative Agent shall be held apply all same day funds credited to the Concentration Account to one or more accounts maintained by the Administrative Agent; provided that all amounts received in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments account shall be applied (xand allocated) firstby the Administrative Agent, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofon each Business Day, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b)8.04; provided, provided however further, that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances amounts in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received Concentration Account transferred thereto from the issuance of Equity Interests shall be applied to Specified German Collection Deposit Account, the Revolving Advances. If Agent orders an appraisal of JPM German Collection Deposit Account or the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests U.K. Euro Concentration Deposit Account shall be applied (xand allocated) firstby the Administrative Agent first to amounts set forth in clauses “Second”, “Third”, “Fifth”, “Sixth”, “Seventh” and “Eighth” (other than clause (iii) thereof) of Section 8.04 that constitute Obligations (other than pursuant to its Guarantee) of the German Borrower and thereafter, to the outstanding principal installments extent of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) secondremaining amounts thereof, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with Section 8.04. Notwithstanding anything to the provisions of Section 3.2(bcontrary in this clause (iii), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied unless any amounts referred to cash collateralize any Obligations related in the preceding sentence are required to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.68.04 pursuant to the terms thereof, no such amounts shall be applied to clauses “First”, “Fourth”, clause (iii) of “Eighth” or “Ninth” through “Last” thereof.
Appears in 2 contracts
Samples: Abl Credit Agreement (King Digital Entertainment PLC), Abl Credit Agreement (King Digital Entertainment PLC)
Mandatory Prepayments. (a) When Within five (5) Business Days of receipt by PRGX or any Borrower sells or otherwise disposes Subsidiary of cash proceeds of any Collateral resulting in Net Disposition Proceeds in excess sale or disposition by PRGX or such Subsidiary of $500,000 in any of its assets other than to a Borrower or a Subsidiary, to the aggregate in extent permitted by this Agreement, or cash proceeds from any fiscal yearcasualty insurance policies or eminent domain, condemnation or similar proceedings, other than Inventory cash proceeds from sales of inventory or equipment in the Ordinary Course ordinary course of Business business, in each case, in an aggregate amount exceeding $100,000, Borrowers shall prepay the Obligations in an amount equal to all such cash proceeds, net of commissions and other reasonable and customary transaction costs, fees and expenses (including, without limitation, amounts used to retire liens on the property transferred, transfer taxes and income taxes) properly attributable to such transaction and payable by PRGX or Dispositions otherwise such Subsidiary in connection therewith (in each case, paid to non-Affiliates), provided, however, with respect to cash proceeds of casualty insurance policies, PRGX and its Subsidiaries shall be permitted to utilize such cash proceeds to repair and/or replace any such affected assets so long as no Event of Default has occurred or is continuing. Any such prepayment shall be applied in accordance with paragraph (d) below.
(b) If PRGX or any Subsidiary issues any Indebtedness or equity securities (other than (i) Indebtedness permitted under Section 7.1, (ii) equity securities issued by a Subsidiary to PRGX or another Subsidiary and (iii) equity issuances upon the exercise of stock options granted under an equity incentive plan of PRGX) for a consideration consisting of cash, in each case, in an aggregate amount exceeding $100,000, then no later than the Business Day following the date of receipt of the cash proceeds thereof, Borrowers shall repay prepay the Advances Obligations in an amount equal to the Net Disposition Proceeds of all such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net cash proceeds, net of underwriting discounts and until the date of payment, commissions and other reasonable costs paid to non-Affiliates in connection therewith. Any such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments prepayment shall be applied in accordance with Section 2.12(d).
(xc) Within thirty (30) days after the date in which the financial statements are delivered in accordance with Section 5.1(a) for the Fiscal Year (commencing with the Fiscal Year ending December 31, 2010), the Borrowers shall prepay the Obligations in an amount equal to 50% of Excess Cash Flow if the Borrowers’ Leverage Ratio is greater than to 0.75 : 1.00. Calculations relating to determination of the Borrowers’ Leverage Ratio and the amount of payments of Excess Cash Flow shall be made as of the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2010) based upon the annual audited financial statements of PRGX and its Subsidiaries delivered by the Borrowers pursuant to Section 5.1(a).
(d) Any prepayments made by the Borrowers pursuant to Sections 2.12(a), (b) or (c) above shall be applied as follows: first, to Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the outstanding Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; fourth, to the principal balance of the Term Loans, until the same shall have been paid in full, pro rata to the Lenders based on their Pro Rata Shares of the Term Loans, and applied to installments of the Term Loan Loans in the inverse order of the maturities thereof, and (y) secondmaturity; fifth, to the remaining Advances (including cash collateralization principal balance of all Obligations relating the Revolving Loans, until the same shall have been paid in full, pro rata to any outstanding the Lenders based on their respective Revolving Commitments and sixth, to Cash Collateralize the Letters of Credit in accordance with Section 2.22(g) in an amount in cash equal to 105% of the provisions LC Exposure as of such date plus any accrued and unpaid fees thereon, provided, however, that clauses fifth and sixth in this subsection (d) shall not apply to prepayments made by the Borrowers pursuant to Section 3.2(b)2.12(c) unless an Event of Default exits and is continuing. The Revolving Commitments of the Lenders shall not be permanently reduced by the amount of any prepayments made pursuant to clauses fifth and sixth above, provided however that if no Default or unless an Event of Default has occurred and is continuingcontinuing and the Required Lenders holding Revolving Commitments so request. Upon Borrowers’ Agent’s written request, such repayments all mandatory prepayments made by Borrowers pursuant to Section 2.12 shall be applied to cash collateralize any Obligations related to outstanding Letters held by the Administrative Agent as Cash Collateral for the benefit of Credit last) in such order as Agent may determine, subject to the Lenders and the Issuing Bank pending expiration of the then applicable Interest Period if the Borrowers’ ability to re-borrow Revolving Advances Agent has a reasonable basis for believing that, in accordance with so doing, the terms hereofBorrowers will avoid or mitigate the payment of any material amount of interest rate breakage fees which would otherwise result from an immediate application of such prepayment amounts.
(be) Notwithstanding the foregoing, with respect to If at any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to time the Revolving Advances and Agent shall implement a reserve equal to Credit Exposure of all Lenders exceeds the amount of such Net Disposition Proceeds Aggregate Revolving Commitment Amount, as reduced pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in 2.8 or otherwise, the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term immediately repay Revolving Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning such excess, together with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in all accrued and required by unpaid interest on such excess amount and any amounts due under Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount 2.19. Each prepayment shall be applied first to the outstanding principal installments Base Rate Loans to the full extent thereof, and next to LIBOR Index Rate Loans to the full extent thereof. If after giving effect to prepayment of all Revolving Loans, the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrowers shall deposit in an account with the Administrative Agent, in the name of the Term Loan in Administrative Agent and for the inverse order benefit of the maturities thereofIssuing Bank and the Lenders, an amount in cash equal to such excess plus any accrued and unpaid fees thereon to be held as collateral for the LC Exposure. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts Such account shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit administered in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last2.22(g) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by If at any time, the Revolving Credit Exposure of all Lenders shall exceed the Borrowing Base, then the Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall immediately prepay Revolving Loans in an amount sufficient to eliminate such excess. Each prepayment shall be applied first to the Base Rate Loans to the full extent thereof, and next to LIBOR Index Rate Loans to the full extent thereof. If after giving effect to prepayment of all Revolving Loans, the Revolving Credit Exposure of all Lenders exceeds the Borrowing Base, the Borrowers shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Issuing Bank and the Lenders, an amount in cash equal to such excess plus any accrued and unpaid fees thereon to be held as collateral for the LC Exposure. Such account shall be administered in accordance with Section 6.62.22(g) hereof.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (PRGX Global, Inc.), Revolving Credit and Term Loan Agreement (PRGX Global, Inc.)
Mandatory Prepayments. (ai) When Subject to the payment of the amounts described in Section 2.6(d), in the event the CP Insurance Policy is terminated, cancelled or modified in writing for any Borrower sells reason (provided that any such modification has not been consented to by the Collateral Agent) or if the Issuer shall dispute in writing the validity of the CP Insurance Policy or its liability for coverage thereunder, the Issuer shall prepay the entire outstanding principal amount of the Notes no later than five (5) Business Days following such termination, cancellation, modification or dispute.
(ii) Subject to the payment of the amounts described in Section 2.6(d), if the Obligors sell or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess all or substantially all of $500,000 in the aggregate in any fiscal yearCollateral, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers Issuer shall repay prepay the Advances Notes in an amount equal to the Net Disposition Cash Proceeds of such sale, such repayments sale or disposition. Such repayment of the Notes is to be made promptly but in no event more than three five (35) Business Days following receipt of such net proceedsCash Proceeds by an Obligor, and until the date of payment, such proceeds shall be held in trust for Agentthe Collateral Agent on behalf of itself and on behalf of the other Secured Parties. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments .
(iii) Proceeds received by any Obligor, the Collateral Agent or the Note Administrative Agent under the CP Insurance Policy, shall be paid by the relevant recipient to the Note Purchasers and applied (x) first, to the outstanding principal installments amount of the Term Loan in Notes within one (1) Business Day of receipt thereof.
(iv) Net Cash Proceeds received by any Obligor (A) under any property or casualty insurance policy of any Obligor (other than business interruption insurance) on account of damage or destruction of any Collateral or under any condemnation award as a result of any taking or condemnation of any Collateral) shall be applied to the inverse order outstanding principal amount of the maturities Notes within ten (10) Business Days of receipt thereof, and (yB) secondwith respect to any Disposition (other than Dispositions described in clause (ii) above or any Disposition permitted under clauses (a) through (l) of the definition of “Permitted Dispositions”) shall be applied to the outstanding principal amount of the Notes within ten (10) Business Days of receipt thereof; provided that with respect to any Net Cash Proceeds described in this clause (iv), the Issuer may, within such ten (10) Business Day period, elect by written notice to the Collateral Agent to apply such Net Cash Proceeds to repair or replace Collateral or reinvest in assets of a kind then used or usable in the business of the Obligors and their Subsidiaries (other than cash, Cash Equivalent or other current assets), and if it does so elect, shall not be required to apply such Net Cash Proceeds to prepay the Notes as set forth above except to the extent of any such Net Cash Proceeds that it has not so applied to repair or replace Collateral or reinvest in such assets within 180 days of receiving such Net Cash Proceeds (or, if a binding commitment in respect thereof has been entered into within such 180-day period, to the remaining Advances extent of any such Net Cash Proceeds that it has not so applied to repair or replace Collateral or reinvest in assets within 180 days after the end of such 180-day period) (including cash collateralization of all Obligations relating or, in each case, such longer period acceptable to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(bCollateral Agent), provided however that if so long as (x) no Default or Event of Default has occurred and is continuing, continuing at the time of such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit lastreinvestment and (y) such Net Cash Proceeds are held in such order as Agent may determinea Deposit Account, subject to Borrowers’ ability a Deposit Account Control Agreement prior to re-borrow Revolving Advances in accordance with the terms hereofconsummation of such reinvestment.
(bv) Notwithstanding Subject to the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under payment of the amounts described in Section 2.20(a2.6(d), so long as if the Obligors incur any Indebtedness not expressly permitted to be incurred pursuant to Section 7.6, the Issuer shall prepay the Notes in an amount equal to the Net Cash Proceeds of such Indebtedness. Such repayment of the Notes is to be made promptly but in no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two event more than one (21) Business Days Day following receipt of such Net Disposition Cash Proceeds by an Obligor, and until the date of payment, such proceeds shall be held in trust for the Collateral Agent on behalf of itself and on behalf of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentSecured Parties.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 2 contracts
Samples: Note Purchase and Guaranty Agreement (Next.e.GO B.V.), Note Purchase and Guaranty Agreement (Athena Consumer Acquisition Corp.)
Mandatory Prepayments. (ai) When If at any Borrower sells time the aggregate total Revolving Credit Exposure of all of the Lenders exceeds the lesser of (i) the Aggregate Revolving Commitments of all of the Revolving Lenders or otherwise disposes (ii) the Borrowing Base, the Borrowers shall immediately prepay the entire amount of such excess to the Administrative Agent, for the ratable account of the Revolving Lenders, in an aggregate amount equal to such excess in accordance with clause (vi) below.
(ii) Upon the Disposition of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in assets by the aggregate in Borrowers or any fiscal year, Subsidiary (other than Inventory in the Ordinary Course of Business or Dispositions otherwise a Disposition permitted under Section 7.18.4(b) or (i)), the Borrowers shall repay the Advances in prepay an aggregate principal amount of Loans equal to 100% of the Net Disposition Cash Proceeds of received therefrom promptly following receipt thereof by the Borrowers or such sale, Subsidiary (such repayments prepayments to be made promptly but applied as set forth in no event more than three clause (3vi) Business Days following below); provided, however, that at the election of the Borrowers (as notified by the Borrowers to the Administrative Agent on or prior to the date of receipt of such net proceeds), the Borrowers or such Subsidiary may reinvest such proceeds to replace such assets in respect of which such proceeds were received so long as (I) such reinvestment is completed within 180 days after the receipt of such proceeds, and until the date (II) while such reinvestment is underway, all of payment, such proceeds shall be held are on deposit with the Administrative Agent in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by a separate deposit account over which the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofAdministrative Agent has exclusive control, and (yIII) second, to the remaining Advances (including cash collateralization such Disposition did not cause an Event of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if Default and no other Default or Event of Default has occurred and is continuing; provided, further, that any Net Cash Proceeds not reinvested within such repayments 180-day period shall be promptly applied to cash collateralize the prepayment of the Loans as otherwise set forth in clause (vi) below. For the avoidance of doubt, nothing in this clause (ii) shall be construed to permit any Obligations related to outstanding Letters Disposition of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofassets not otherwise permitted hereunder.
(biii) Notwithstanding Upon the foregoingsale or issuance by the Borrowers or any Subsidiary of any of their Equity Interests (other than any Specified Contribution), the Borrowers shall prepay an aggregate principal amount of Loans in the amount equal to 100% of all Net Cash Proceeds received therefrom promptly following receipt thereof by the Borrowers or such Subsidiary (such prepayments to be applied as set forth in clause (vi) below). For the avoidance of doubt, nothing in this clause (iii) shall be construed to permit any sale or issuance of Equity Interests not otherwise permitted hereunder.
(iv) Upon the issuance or incurrence by the Borrower or any Subsidiary of any Indebtedness (other than Indebtedness permitted under Section 8.1), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom promptly following receipt thereof by the Borrower or such Subsidiary (such prepayment to be applied as set forth in clause (vi) below). For the avoidance of doubt, nothing in this clause (iv) shall be construed to permit the issuance or incurrence of Indebtedness not otherwise permitted hereunder.
(v) Upon the receipt by the Borrowers or any Subsidiary of any Net Cash Proceeds not in the ordinary course of business, including, without limitation, tax refunds, pension plan reversions, proceeds of insurance, condemnation awards (and payments in lieu thereof), indemnity payments and any purchase price adjustments (each, an “Extraordinary Receipt”), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom promptly following receipt thereof by the Borrowers or such Subsidiary (such prepayments to be applied as set forth in clause (vi) below); provided, however, that with respect to insurance proceeds received in connection with any Net Disposition Proceeds which would otherwise give rise casualty or condemnation event, at the election of the Borrowers (as notified by the Borrowers to a prepayment under Section 2.20(a), so long as no Event the Administrative Agent on or prior to the date of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds proceeds), the Borrowers may apply such proceeds to the repair, restoration, or replacement of the applicable Loan Party’s assets suffering such casualty or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advancecondemnation event, so long as (iA) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be maderepair, (ii) all conditions to funding sent forth in Section 8.2 restoration, or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) replacement is completed within 180 days after the end receipt of each such fiscal yearproceeds, (B) while such repair, restoration, or replacement is underway, all of such proceeds are on deposit with the Administrative Agent in a separate deposit account over which amount shall be applied the Administrative Agent has exclusive control and otherwise available to the outstanding principal installments of Borrowers upon its request to pay for the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) costs and expenses of such cash proceeds in the case of repair, restoration or replacement as such incurrence or issuance of Indebtedness. Such repayments will be applied (x) firstcosts and expenses are incurred, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (yC) second, to the remaining Advances (including cash collateralization such casualty or condemnation event did not cause an Event of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if Default and no other Default or Event of Default has occurred and is continuing; provided, further, if such repayments repair, restoration, or replacement is not completed within such 180-day period, then such Net Cash Proceeds shall be promptly applied to the prepayment of the Loans as otherwise set forth in clause (vi) below.
(vi) Prepayments of Loans under Sections 2.8(b)(ii) through (v) shall be applied first, to cash collateralize the remaining installments of principal due on the Revolving Loans, in order of maturity; and shall be applied first, to any Obligations related Base Rate Loans then outstanding, and second, to outstanding Letters of Credit last) any SOFR Loans then outstanding, and if more than one SOFR Loan is then outstanding, to such SOFR Loans in such order as the Borrowers may direct, or if the Borrowers fails to so direct, as the Administrative Agent may determine subject shall elect. For the avoidance of doubt, the application of any mandatory prepayment to Borrowers’ ability to reborrow the Outstanding Amount of the Revolving Advances in accordance with the terms hereof.
(e) Other than Loans made pursuant to any issuance of Equity Interests of Borrowers (ithis Section 2.8(b)(vi) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures shall not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent result in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance a corresponding permanent reduction of the Term Loan exceeds Aggregate Revolving Commitments. Unless so directed by the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order Borrowers, or unless an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments any prepayment of Loans pursuant to this Section 2.8(b) shall only be applied to cash collateralize any Obligations related to the outstanding Letters SOFR Loans (A) on the last day of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, Interest Period applicable thereto or (iiB) as a result of to the extent that there are no outstanding Base Rate Loans, and, in any taking or condemnation of any assets or property such event, the Borrowers shall be applied in accordance with pay all amounts required pursuant to Section 6.62.16.
Appears in 2 contracts
Samples: Secured Revolving Loan Credit Agreement (StratCap Digital Infrastructure REIT, Inc.), Secured Revolving Loan Credit Agreement (Strategic Wireless Infrastructure Fund Ii, Inc.)
Mandatory Prepayments. (a) When Upon receipt by any Borrower sells or otherwise disposes Group Member of Net Cash Proceeds arising from an Asset Sale of any Collateral resulting Collateral, the Borrower shall immediately prepay the Loans (or provide cash collateral in Net Disposition Proceeds in excess respect of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course Letters of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Credit) in an amount equal to the Net Disposition Proceeds 100% of such sale, Net Cash Proceeds. Any such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments mandatory prepayment shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with clause (b) below.
(b) Subject to the provisions of Section 3.2(b2.13(g) (Payments and Computations), provided however that any prepayments made by the Borrower required to be applied in accordance with this clause (b) shall be applied as follows: first, to repay the outstanding principal balance of the Swing Loans until such Swing Loans shall have been repaid in full; second, to repay the outstanding principal balance of the Revolving Loans until such Revolving Loans shall have been paid in full; and then, if no Default or an Event of Default has occurred and is continuing, to provide cash collateral for any Letter of Credit Obligations in an amount equal to 103% of such repayments Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) until all such Letter of Credit Obligations have been fully cash collateralized in the manner set forth therein.
(c) If at any time, the aggregate principal amount of Revolving Credit Outstandings exceeds the aggregate Maximum Credit at such time, the Borrower shall be applied forthwith prepay the Swing Loans first and then the Revolving Loans then outstanding in an amount equal to such excess. If any such excess remains after repayment in full of the aggregate outstanding Swing Loans and Revolving Loans, the Borrower shall provide cash collateralize collateral for the Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) in an amount equal to 103% of such excess.
(d) The Borrower hereby irrevocably waives the right to direct, during a Liquidity Event Period, the application of all funds in the Cash Collateral Account and agrees that the Administrative Agent may and, upon the written direction of the Requisite Lenders given at any time during such Liquidity Event Period, shall (i) deliver a Blockage Notice to each Deposit Account Bank for each Approved Deposit Account and (ii) except, as provided in Section 2.13(g) (Payments and Computations) and clause (b) above, following the occurrence and during the continuance of an Event of Default, apply all payments in respect of any Obligations related and all available funds in the Cash Collateral Account on a daily basis as follows: first, to repay the outstanding principal amount of the Swing Loans until such Swing Loans have been repaid in full; second, to repay the outstanding principal balance of the Revolving Loans until such Revolving Loans shall have been repaid in full; and then to any other Obligation then due and payable. The Administrative Agent agrees to apply such funds and the Borrower consents to such application. If (i) following such application, (ii) outside of a Liquidity Event Period or (iii) after all Letters of Credit last) in such order as Agent may determineshall have expired or be fully drawn and all Revolving Credit Commitments shall have been terminated, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
there are no Loans outstanding and no other Obligations that are then due and payable (b) Notwithstanding the foregoingand, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no if an Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiariescontinuing, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have cash collateral has been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans provided in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery 103% of the financial statements Letter of Credit Obligations in the manner required in Section 9.3 (Actions in Respect of Letters of Credit)), then the Administrative Agent shall cause any remaining funds in the Cash Collateral Account to Agent referred be paid at the written direction of the Borrower (or, in the absence of such direction, to the Borrower or another Person lawfully entitled thereto). AMENDED AND RESTATED CREDIT AGREEMENT XXXXX HEALTHCARE CORPORATION
(e) At any time during a Liquidity Event Period, subject to Section 2.9(d) all amounts collected in and required by the Concentration Account pursuant to Section 9.7 for such fiscal year but in any event not later than one hundred twenty 7.11 (120Cash Management) days after the end of each such fiscal year, which amount shall be applied on each Business Day by the Administrative Agent first, to prepay the outstanding principal installments Loans (including Swing Loans) and then, if an Event of the Term Loan in the inverse order Default shall have occurred and be continuing, to provide cash collateral for any Letter of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances Credit Obligations in an amount equal to one hundred percent (100.00%) 103% of such cash proceeds Letter of Credit Obligations in the case manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) until all such Letter of Credit Obligations have been fully cash collateralized in the manner set forth therein. Following such application, the Administrative Agent shall, subject to Section 2.9(d) cause any remaining funds in the Concentration Account to be paid at the written direction of the Borrower (or, in the absence of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) firstdirection, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(bBorrower or another Person lawfully entitled thereto), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received If, at any time, the aggregate amount of the Lenders’ Revolving Credit Outstandings exceeds the aggregate Revolving Credit Commitments as then in effect by Borrowers greater than 5% for five consecutive Business Days solely due to fluctuations in currency exchange rates, the Borrower shall within one Business Day after the receipt of written notice thereof from the Administrative Agent repay Loans (or Agent provide cash collateral for the Letter of Credit Obligations in the manner set forth in Section 9.3 (iActions in Respect of Letters of Credit) under any insurance policy on account in an amount equal to 103% of damage or destruction the Letter of any assets or property of any BorrowersCredit Obligations) in a principal amount such that, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6after giving effect to such repayment, the Revolving Credit Outstandings do not exceed the aggregate Revolving Credit Commitments.
Appears in 1 contract
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds The Loans shall be held in trust for Agent. The foregoing shall not be deemed subject to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit mandatory prepayment in accordance with the provisions following provisions:
(a) If Outstanding Domestic Revolving Loans and Swing Line Revolving Loans Exceed Total Domestic Revolving Commitment. If on any date (after giving effect to any other payments on such date) the sum of Section 3.2(b)(i) the aggregate outstanding principal amount of Domestic Revolving Loans and the Domestic Facility Letter of Credit Outstandings, provided however plus (ii) the aggregate outstanding principal amount of Swing Line Revolving Loans, exceeds the Total Domestic Revolving Commitment as then in effect, the Domestic Facility Borrowers shall prepay on such date that if no Default or Event principal amount of Default has occurred Swing Line Revolving Loans and, after Swing Line Revolving Loans have been paid in full, Unpaid Domestic Facility Drawings and is continuingDomestic Revolving Loans, in an aggregate amount at least equal to such repayments excess and conforming in the case of partial prepayments of any Loans to the applicable requirements as to the amounts of partial prepayments which are contained in section 7.1. If, after giving effect to the prepayment of Loans and Unpaid Domestic Facility Drawings, the aggregate amount of Domestic Facility Letter of Credit Outstandings exceeds the Total Domestic Revolving Commitment as then in effect, the Domestic Facility Borrowers shall be applied pay to the Domestic Administrative Agent an amount in cash collateralize any Obligations related and/or Cash Equivalents equal to outstanding such excess and the Domestic Administrative Agent shall hold such payment as security for the reimbursement obligations of the Domestic Facility Borrowers hereunder in respect of Domestic Facility Letters of Credit last) pursuant to a cash collateral agreement to be entered into in such order as form and substance reasonably satisfactory to the Domestic Administrative Agent may determine, subject and the Domestic Facility Borrowers (which shall permit certain investments in Cash Equivalents satisfactory to Borrowers’ ability the Domestic Administrative Agent and the Domestic Facility Borrowers until the proceeds are applied to re-borrow Revolving Advances in accordance with the terms hereofObligations).
(b) Notwithstanding the foregoing, with respect to If Outstanding Swing Line Revolving Loans Exceed Swing Line Revolving Commitment. If on any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability date (after giving effect to any other payments on such date) the release aggregate outstanding principal amount of Swing Line Revolving Loans exceeds the reserve for Swing Line Revolving Commitment at such amount) to cause such Revolving Advances to be madetime, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Domestic Facility Borrowers shall prepay the outstanding amount of the Term on such date Swing Line Revolving Loans in an aggregate amount at least equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in such excess and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds conforming in the case of such incurrence or issuance partial prepayments of Indebtedness. Such repayments will be applied (x) first, Swing Line Revolving Loans to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, requirements as to the remaining Advances (including cash collateralization amounts of all Obligations relating to any outstanding Letters partial prepayments of Credit Swing Line Revolving Loans which are contained in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofsection 7.1.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Samples: Credit Agreement (Genlyte Group Inc)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until On the date of paymentany termination or reduction of the Commitments pursuant to Section 2.05, such proceeds the Borrower shall pay or prepay so much of the principal amount outstanding under this Agreement and/or deposit funds in the Cash Collateral Account in respect of LC Outstandings pursuant to Section 6.02 for the ratable accounts of the Lenders as shall be necessary in order that the Outstanding Credits (after giving effect to such prepayment) minus the amount held in trust for Agent. The foregoing shall the Cash Collateral Account after giving effect to such cash collateralization will not be deemed to be implied consent to any exceed the amount of Commitments following such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied termination or reduction, together with (xA) first, accrued interest to the outstanding date of such prepayment on the principal installments of the Term Loan amount repaid or prepaid and (B) in the inverse order case of the maturities thereofprepayments of Eurodollar Rate Advances, and (y) second, any amount payable to the remaining Advances (including cash collateralization of all Obligations relating Lenders pursuant to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b8.04(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect All prepayments of Advances required to any Net Disposition Proceeds which would otherwise give rise be made pursuant to a prepayment under this Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds 2.12 shall be applied by Agent (without reference to minimum dollar requirements) to outstanding Base Rate Advances up to the Revolving Advances and Agent shall implement a reserve equal full amount thereof before they are applied to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentEurodollar Rate Advances.
(c) Borrowers In lieu of prepaying any Eurodollar Rate Advance under any provision (other than Sections 2.14 and 6.01) of this Agreement, the Borrower may, upon notice to the Agent, deliver such funds to the Agent to be held as additional cash collateral securing the obligations hereunder. The Agent shall prepay deposit all amounts delivered to it in a non-interest-bearing special purpose cash collateral account, to be governed by a cash collateral agreement in form and substance satisfactory to the outstanding amount Borrower and the Agent, and shall apply all such amounts in such account against such Advances on the last day of the Term Loans in an amount equal Interest Period therefor. The Agent shall promptly notify the Lenders of any election by the Borrower to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied deliver funds to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by under this Section 2.20(csubsection (c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In Notwithstanding the event of foregoing, if at any issuance or other incurrence of Indebtedness time the Necessary Approvals shall not have been obtained and (other than Permitted Indebtednessi) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds Reference Rating is below BBB- in the case of such incurrence S&P or issuance below Baa3 in the case of Indebtedness. Such repayments will be applied (x) firstMxxxx'x, to or unrated, the Borrower shall prepay all of the outstanding principal installments amounts of the Term Loan in the inverse order of the maturities thereof and (y) secondAdvances, together with accrued interest to the remaining date of such prepayment on the principal amount prepaid (provided, however, that the rate of interest on the principal amount prepaid shall not exceed the maximum amount then permitted under applicable regulatory approvals). In the case of prepayments of Eurodollar Rate Advances (including cash collateralization of all Obligations relating pursuant to any outstanding Letters of Credit in accordance with this subsection, the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments Borrower shall be applied obligated to cash collateralize any Obligations related to outstanding Letters of Credit last) reimburse the Lenders in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than respect thereof pursuant to any issuance of Equity Interests of Borrowers (iSection 8.04(b) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice on the date of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofprepayment.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Mandatory Prepayments. (ai) When If at any time the aggregate outstanding balance of the Revolving Loan exceeds the Revolving Loan Commitment, Borrower sells or otherwise disposes shall immediately repay the aggregate outstanding Revolving Loan to the extent required to eliminate such excess.
(ii) If at any time the aggregate outstanding balance of the Revolving Loan, Term Loan and Term Loan B exceeds the Borrowing Base, Borrower shall make an offer (a “Borrowing Base Excess Offer”) to prepay the aggregate outstanding Advances to the extent required to eliminate such excess.
(iii) Upon receipt by any Credit Party of any Collateral cash proceeds of any asset disposition (including condemnation proceeds and insurance proceeds resulting in Net Disposition Proceeds in excess from the damage or destruction of $500,000 in any asset), Borrower shall make an offer (an “Asset Sale Offer”) to prepay the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Loans in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net all proceeds, net of (A) commissions and until the date other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by Borrower in connection therewith (in each case, paid to non-Affiliates), (B) goods and services taxes, sales taxes and transfer taxes, as applicable, (C) amounts payable to holders of payment, senior Liens on such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied asset (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofextent such Liens constitute Permitted Encumbrances hereunder), if any, and (yD) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit an appropriate reserve for income taxes in accordance with the provisions of Section 3.2(b), provided however that if no GAAP in connection therewith. Unless a Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure acceptance of an Asset Sale Offer shall be applied in accordance with subsection (iv) below. Borrower shall not be required to make an Asset Sale Offer under this clause (ii) in respect of the following: (1) proceeds of sales of Inventory in the ordinary course of business, provided that for greater certainty any sale of goods and other personal property that are held by Borrowers or on behalf of any Credit Party for rent or lease shall not be considered a sale of Inventory in the ordinary course of business for the purpose of this Section 1.5(c); (2) asset disposition proceeds of less than $2,500,000 in the aggregate in any Fiscal Year and (3) asset disposition proceeds that are reinvested in Equipment within one hundred and eighty (180) days following receipt thereof; provided that Borrower notifies Agent of its intent to deliver reinvest at the time such financial statementsproceeds are received and when such reinvestment occurs.
(div) In Borrower shall make the event Asset Sale Offer or Borrowing Base Excess Offer by delivering a written notice of such offer to Agent as soon as practicable, and, in any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shallevent, no later than three (3) Business Days after the Days, following receipt of any applicable proceeds. A Lender may accept such Asset Sale Offer or Borrowing Base Excess Offer by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ delivering a written notice of such issuance of Equity Interests, and Agent in its sole discretion, acceptance to Borrower within such ten fifteen (1015) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time days after receipt of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofoffer.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Samples: Credit Agreement (Clean Harbors Inc)
Mandatory Prepayments. (a) When No later than the Business Day following the date of receipt by the Borrower or any Borrower sells or otherwise disposes of its Subsidiaries of any Collateral resulting in Net Disposition Proceeds in excess proceeds of $500,000 in any sale or disposition by the aggregate in Borrower or any fiscal yearof its Subsidiaries of any of its assets, other than Inventory in or any proceeds from any casualty insurance policies or eminent domain, condemnation or similar proceedings, the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers Borrower shall repay prepay the Advances Obligations in an amount equal to all such proceeds, net of commissions, Taxes and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by the Net Disposition Proceeds Borrower in connection therewith (in each case, paid to non-Affiliates); provided that the Borrower shall not be required to prepay the Obligations with respect to (i) proceeds from the sales of assets in the ordinary course of business, (ii) proceeds from other asset sales permitted under Section 7.6 and (iii) proceeds from casualty insurance policies or eminent domain, condemnation or similar proceedings that are reinvested in assets then used or usable in the business of the Borrower and its Subsidiaries within 180 days following receipt thereof or committed to be reinvested pursuant to a binding contract prior to the expiration of such sale, such repayments to be made promptly but in no event more than three (3) Business Days 180-day period and actually reinvested within 360 days following receipt thereof, so long as such proceeds are held in Controlled Accounts at Truist Bank or subject to Control Account Agreements until reinvested. Any such prepayment shall be applied in accordance with subsection (d) of such net proceeds, and until this Section 2.12.
(b) No later than the Business Day following the date of paymentreceipt by the Borrower or any of its Subsidiaries of any proceeds from any issuance of Indebtedness by the Borrower or any of its Subsidiaries, the Borrower shall prepay the Obligations in an amount equal to all such proceeds shall be held proceeds, net of underwriting discounts and commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by the Borrower in trust for Agent. The foregoing connection therewith (in each case, paid to non-Affiliates); provided that the Borrower shall not be deemed required to be implied consent prepay the Obligations with respect to any proceeds of Indebtedness permitted under Section 7.1. Any such sale otherwise prohibited by the terms and conditions hereof. Such repayments prepayment shall be applied in accordance with subsection (xd) of this Section 2.12.
(c) [Intentionally Omitted].
(d) Any prepayments made by the Borrower pursuant to subsection (a) or (b) of this Section 2.12 shall be applied as follows: first, to the outstanding principal installments Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Term Loan in the inverse order of the maturities thereof, and (y) Documents; second, to all reimbursable expenses of the remaining Advances (including cash collateralization of all Obligations relating Lenders then due and payable pursuant to any outstanding Letters of Credit the Loan Documents, pro rata to the Lenders based on their respective pro rata shares of such fees and expenses; third, to interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; fourth, to the principal balance of the Revolving Loans, until the same shall have been paid in accordance with full, pro rata to the provisions Lenders based on their respective Revolving Commitments. The Revolving Commitments of Section 3.2(b)the Lenders shall not be permanently reduced by the amount of any prepayments made pursuant to clause fourth above, provided however that if no Default or unless an Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with continuing and the terms hereofRequired Lenders so request.
(be) Notwithstanding If at any time the foregoingaggregate Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds reduced pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in 2.8 or otherwise, the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount Borrower shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of immediately repay the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning such excess, together with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in all accrued and required by unpaid interest on such excess amount and any amounts due under Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount 2.19. Each prepayment shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) follows: first, to the outstanding principal installments of Base Rate Loans and LIBOR Index Rate Loans to the Term Loan in the inverse order of the maturities thereof full extent thereof; and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied Eurodollar Loans to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereoffull extent thereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Mandatory Prepayments. (a) When Borrower or any Borrower Restricted Subsidiary sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal yearCollateral, other than Inventory in the Ordinary Course ordinary course of Business business, or Dispositions otherwise permitted under Section 7.1a Casualty Event has occurred, Borrowers then, unless a Reinvestment Notice shall be delivered in respect thereof within ten (10) days of Borrower’s or such Loan Party’s receipt of proceeds (including insurance proceeds, awards, or compensation) of such sale or other disposition or Casualty Event, Borrower shall repay the Advances made to Borrower in an amount equal to the Net Disposition Proceeds of such saleCash Proceeds, such repayments to be made promptly but in no event more than three one (31) Business Days Day following receipt of such Net Cash Proceeds, and until the date of payment, such proceeds shall be held in trust for Agent; provided that notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Advances and other amounts as set forth in this Section 2.14(a); and provided further, that so long as no Default or Event of Default shall exist or would result therefrom, and such Net Cash Proceeds of such a sale, disposition, or Casualty Event do not exceed $25,000,000 in any single transaction or series of related sales or dispositions, then no such prepayment shall be required. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied to the Advances in such order as Agent may determine, subject to Xxxxxxxx’s ability to reborrow Revolving Advances in accordance with the terms hereof.
(b) Subject to the provisions of Section 4.11, Agent shall apply the proceeds of any insurance settlements from casualty losses which are received by Agent to the Advances in such order as Agent may determine, subject to Xxxxxxxx’s ability to reborrow Revolving Advances in accordance with the terms hereof.
(c) [Reserved].
(d) [Reserved]. 55
(e) If any Loan Party receives any proceeds from the issuance or incurrence of any Indebtedness (other than Permitted Indebtedness), Borrower shall repay the Advances made to Borrower in an amount equal to the net proceeds of such issuance or incurrence (i.e., gross proceeds less the reasonable costs of such issuance or incurrence), such repayments to be made promptly but in no event more than one (1) Business Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale or issuance otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining other Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan PartyXxxxxxxx’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Samples: Loan and Security Agreement (Veeco Instruments Inc)
Mandatory Prepayments. Unless otherwise specified below, any prepayment under this Section 2.8 shall be applied in the same order as set forth in Section 2.7(c). The amount of any such mandatory prepayment may not be reborrowed by Borrower. Subject, in each instance, to the rights of the holders of the Other Senior Debt set forth in the Intercreditor Agreement, Borrower shall make mandatory prepayments in each of the following circumstances:
(a) When In the event of any Public Offering by Borrower or any of its Subsidiaries of its debt or equity securities, at Agent’s option, Borrower shall prepay the Advances and any other Obligations in an amount equal the lesser of (i) the net proceeds of any such Public Offering received by Borrower or such Subsidiary or (ii) the aggregate amount of all Obligations then outstanding, any such prepayment to be made within five (5) Business Days of receipt of the proceeds of such Public Offering by Borrower or such Subsidiary; provided however, if Agent opts not to require Borrower to prepay the Advances and the other Obligations in accordance with the terms of this clause (a), and Borrower opts to prepay any such Advances and Obligations, such prepayment shall be made in accordance with the terms of Section 2.7, including the payment of any applicable Prepayment Premium.
(b) In the event of any Change in Control or Change of Ownership, Borrower shall prepay all Advances and any other Obligations (including the applicable Prepayment Premium, if any) then outstanding, such prepayment to be made within five (5) Business Days from the date of the occurrence of such Change of Control or Change of Ownership.
(c) Promptly after Borrower’s receipt of the proceeds of any issuance of any Capital Stock of Borrower, Borrower shall prepay the outstanding principal amount of the Advances equal to the net proceeds of such issuance (i.e., gross proceeds, less the reasonable costs of such issuance). Such repayments shall be applied to the outstanding principal installments of the Advances in the inverse order of the maturities thereof.
(d) Subject to Section 4.3 hereof, when Borrower or any of its Subsidiaries sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal yearCollateral, other than Inventory in the Ordinary Course ordinary course of Business or Dispositions otherwise permitted under Section 7.1business, Borrowers Borrower shall repay the Advances in an amount equal to the Net Disposition Proceeds net proceeds of such salesale or other disposition (i.e., gross proceeds less the reasonable costs of such sales or other dispositions), such repayments to be made promptly promptly, but in no event more than three one (31) Business Days Day following receipt of such net proceeds, and and, until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan Loans, in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Samples: Loan and Security Agreement (Vision-Ease Lens, Inc.)
Mandatory Prepayments. (a) When If on any Borrower sells date the sum of (i) the aggregate outstanding principal amount of Revolving Loans (after giving effect to all other repayments thereof on such date) plus (ii) the Letter of Credit Outstandings on such date exceeds the Total Revolving Loan Commitment as then in effect, the Borrowers shall repay on such date the principal of Revolving Loans in an aggregate amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Loans, the aggregate amount of Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment as then in effect, the Company shall pay to the Agent on such date an amount in cash and/or Cash Equivalents equal to such excess (up to the aggregate amount of Letter of Credit Outstandings at such time) and the Agent shall hold such payment as security for the obligations of the Borrowers hereunder pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Agent (which shall permit certain investments in Cash Equivalents reasonably satisfactory to the Agent until the proceeds are applied to the secured obligations); provided that any such Cash collateral shall be released to the Borrowers at any time at which such excess shall no longer exist.
(b) In addition to any other mandatory prepayments pursuant to this Section 4.02, on each date on or otherwise disposes after the Initial Borrowing Date on which the Company or any of any Collateral resulting in its Subsidiaries receives Net Disposition Cash Proceeds from an Asset Sale or Sales, disregarding for purposes of this Section 4.02(b) clause (iii) of the definition of "Asset Sale", in excess of $500,000 individually or $1,000,000 in the aggregate in any fiscal yearconsecutive twelve month period, other than Inventory in the Ordinary Course any Borrowings and Letter of Business or Dispositions otherwise permitted under Section 7.1, Borrowers Credit Outstandings shall repay the Advances in be reduced by an amount equal to the Net Disposition Proceeds 100% of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any excess Net Disposition Cash Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Documentreceived.
(c) Borrowers In addition to any other mandatory prepayments pursuant to this Section 4.02, on each date on or after the Initial Borrowing Date on which the Company or any of its Subsidiaries receives any cash proceeds from any incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 8.04) by the Company or any of its Subsidiaries, any Borrowings and Letter of Credit Outstandings shall prepay the outstanding amount of the Term Loans in be reduced by an amount equal to twenty-five percent 100% of the cash proceeds (25%net of all underwriting discounts, fees and commissions and other costs and expenses associated therewith) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery respective incurrence of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statementsIndebtedness.
(d) In addition to any other mandatory prepayments pursuant to this Section 4.02, on each date on or after the event Initial Borrowing Date on which the Company or any of its Subsidiaries receives any cash proceeds, from any sale or issuance of preferred or other incurrence common equity of Indebtedness (or cash capital contributions to) the Company or any of its Subsidiaries (other than Permitted Indebtednessproceeds received from (x) by Borrowersissuances of options to purchase the Company Common Stock to management, Borrowers shalldirectors, no later than three (3) Business Days after the receipt by Borrowers non-employee consultants, and employees of the cash proceeds from Company and its Subsidiaries, (y) issuances of the Company Common Stock (including as a result of the exercise of any such issuance options with regard thereto) to management, directors, non-employee consultants, and employees of the Company and its Subsidiaries and (z) equity contributions to any Subsidiary of the Company made by the Company or incurrence any other Subsidiary of Indebtednessthe Company), repay the Advances in any Borrowings and Letter of Credit Outstandings shall be reduced by an amount equal to one hundred percent (100.00%) 100% of such cash proceeds in the case (net of such incurrence or issuance of Indebtedness. Such repayments will be applied (xall underwriting discounts, fees and commissions and other costs and expenses associated therewith) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default respective equity issuance or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofcapital contribution.
(e) Other than In addition to any other mandatory prepayments pursuant to this Section 4.02, within 10 days following each date on or after the Initial Borrowing Date on which the Company or any issuance of Equity Interests its Subsidiaries receives proceeds from any insurance on any assets owned by the Company or its Subsidiaries and such proceeds are in excess of Borrowers $500,000 individually or $1,000,000 in the aggregate in any consecutive twelve month period, and such proceeds are not otherwise reinvested (ior contractually committed to be reinvested) contemplated in like assets within 90 days of receipt, any Borrowings and Letter of Credit Outstandings shall be reduced by Section 6.5(d), (ii) used an amount equal to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice 100% of such issuance excess insurance proceeds; provided, however, that any proceeds in excess of Equity Interests$2 million shall be deposited in a cash collateral account, and Agent in its sole discretionpursuant to documentation acceptable to the Agent, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time pending application of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofherewith.
(f) All proceeds received With respect to each repayment of Revolving Loans required by this Section 4.02, the Borrowers or Agent may designate the Types of Revolving Loans which are to be repaid and, in the case of Eurodollar Loans, the specific Borrowing(s) pursuant to which such Loans were made; provided that (i) under any insurance policy Eurodollar Loans may be designated for repayment pursuant to this Section 4.02 only on account the last day of damage or destruction an Interest Period applicable thereto unless all Eurodollar Loans with Interest Periods ending on such date of any assets or property of any Borrowers, or required prepayment and all Base Rate Loans have been paid in full; (ii) as if any repayment of Eurodollar Loans made pursuant to a result single Borrowing shall reduce the outstanding Eurodollar Loans to an amount less than the Minimum Borrowing Amount, such Borrowing shall be immediately converted into Base Rate Loans; and (iii) each repayment of any taking or condemnation of any assets or property Revolving Loans made pursuant to a Borrowing shall be applied pro rata among such Revolving Loans. In the absence of a designation by the Borrowers as described in accordance the preceding sentence, the Agent shall, subject to the above, make such designation in its sole discretion with a view, but no obligation, to minimize breakage costs owing under Section 6.61.11.
(g) Notwithstanding anything to the contrary contained elsewhere in this Agreement, all then outstanding Revolving Loans and Letter of Credit Outstandings shall be repaid in full on the Final Maturity Date.
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Samples: Senior Secured Reducing Revolving Credit Agreement (Di Industries Inc)
Mandatory Prepayments. (a) When In the event that the aggregate amount of the Loans and the Letter of Credit Accommodations made or provided to any Borrower sells outstanding at any time shall exceed the Borrowing Base of such Borrower, or the aggregate amount of the outstanding Letter of Credit Accommodations exceed the sublimit for Letter of Credit Accommodations set forth in Section 2.2(d), or the aggregate amount of the Loans and the Letter of Credit Accommodations outstanding at any time shall exceed the Maximum Credit, such event shall not limit, waive or otherwise disposes affect any rights of Agent and Lenders in that circumstance or on any future occasions and Borrowers shall, upon demand by Agent, which may be made at any time or from time to time, immediately pay to Agent, for the ratable benefit of Lenders, the entire amount of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 such excess(es) for which payment is demanded or provide cash collateral up to such amount as may be required by Agent.
(b) On each date when any reduction to the lending formula with respect to Eligible Inventory set forth in the aggregate in any fiscal yeardefinition of the Borrowing Base becomes effective, other than Inventory in regardless of the Ordinary Course amounts of Business or Dispositions otherwise permitted under Section 7.1Eligible Inventory, Borrowers shall repay absolutely and unconditionally, automatically and without demand, pay to Agent, for the Advances ratable benefit of Lenders, in respect of the Loans an amount equal to the Net Disposition Proceeds excess, if any, of the aggregate unpaid principal amount of the Loans with respect to Eligible Inventory over the amount of the Borrowing Base calculated using the applicable percentage with respect to Eligible Inventory as so reduced.
(c) Without limiting the obligations of Borrowers or Guarantors to obtain the consent of Agent and Lenders to any Asset Sale, or any right of Agent and Lenders to receive any payments hereunder, upon the date of the transfer of any interest in any assets or properties of any Borrower, Guarantor or other subsidiary of Huffy pursuant to a Business Unit Sale, Borrowers and Guarantors shall absolutely and unconditionally, automatically and without demand, pay to Agent, for the ratable benefit of Lenders, an amount equal to the sum of: (i) all expenses of Agent and any Lender related to such sale, including all expenses, liabilities and advances incurred or made by Agent or any Lender in connection therewith (including attorneys' fees and legal expenses), plus (ii) the amount equal to the greater of the Loans and Letter of Credit Accommodations based on the assets subject to such repayments Asset Sale or the Borrowing Base of the Borrower whose assets or Capital Stock is subject to such Asset Sale or if the assets or Capital Stock subject to such Asset Sale are not assets or Capital Stock of a Borrower, then the amount of the payment shall be up to an amount equal to the Collateral (other than the Term Loan Priority Collateral and the Term Lender Lease Priority) of such Guarantor or other Subsidiary, plus (iii) the amount equal to twenty-five (25%) percent of the Net Available Proceeds from such Asset Sale remaining after application of certain amounts to the Obligations and Term Loan Senior Debt as set forth below. Borrowers and Guarantors shall cause the proceeds from any such Asset Sale in the amount of the prepayment required hereunder to be made promptly but paid by the purchaser pursuant to such Asset Sale directly to Agent for application to the Obligations in no event more than three (3) Business Days following receipt of such net proceeds, and until accordance with the terms hereof. Upon the date of paymentthe transfer of any interest in any assets or properties pursuant to an Asset Sale described herein, such proceeds shall be held Agent may, at its option, establish a reserve pursuant to Section 1.11(c) hereof in trust for Agent. an amount up to twenty-five (25%) percent of the Net Available Proceeds referred to in clause (c)(iii) above.
(d) The foregoing shall not be deemed to be implied consent to Net Available Proceeds of any such sale otherwise prohibited by the terms and conditions hereof. Such repayments Business Unit Sale shall be applied as follows:
(xi) first, to the outstanding principal installments payment in full of the Term Loan expenses of such sale of Agent or any Lender, including all expenses, liabilities and advances incurred or made by Agent or such Lender in connection therewith (including reasonable attorneys' fees and legal expenses);
(ii) second,
(A) to the inverse order payment of the maturities thereof, Obligations in whatever manner and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit order Agent chooses in accordance with the provisions of Section 3.2(b), provided however that if no Default this Agreement and applicable law (or Event to be held as cash collateral in respect of Default has occurred and the Obligations constituting contingent obligations of Debtors) up to an amount equal to the greater of (1) the Borrowing Base of the Division or Borrower whose assets or Capital Stock is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two such Asset Sale or (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds Obligations owing by such Borrower (and including for this purpose any Division of any Borrower); provided, that, if the Person whose assets or Capital Stock are sold shall not be a Borrower, then the amount of the payment to be applied to the Obligations shall be up to an amount equal to the Collateral (other than Term Lender Priority Collateral or Term Lender Lease Priority Collateral) of such portion thereofPerson, and
(B) to pay the actual cost extent the assets subject to such Asset Sale include any of reinvestment and the reserve Term Lender Lease Priority Collateral, to the payment in full of the Term Lender Lease Debt arising pursuant to the Term Lender Lease with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and assets;
(iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31third, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments payment in full of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit Senior Debt in accordance with the provisions of Section 3.2(b)the Term Loan Agreement and applicable law; and
(iv) fourth, provided however that if no Default or Event as to any proceeds then remaining (A) seventy-five (75%) percent of Default has occurred such remaining proceeds, to the payment of the Term Loan Subordinated Debt in accordance with the provisions of the Restructuring Agreement and applicable law; provided, that, as of the date of any such payment and after giving effect thereto, (1) the condition set forth in Sections 9.9(c)(xvi)(C)(1) of this Agreement shall be satisfied, and (2) in the event such condition is continuingnot satisfied, then such repayments proceeds shall be applied to cash collateralize any such of the Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject until such condition is satisfied and thereafter, any balance shall be applied to Borrowers’ ability the Term Loan Subordinated Debt as provided herein) and (B) twenty-five (25%) percent of such remaining proceeds, to reborrow Revolving Advances the payment of the Obligations in whatever manner and order Agent chooses in accordance with the terms provisions hereof.
(e) Other than pursuant Nothing contained in this Section 6.5 shall be construed as a consent to any issuance Asset Sale or waiver of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used any conditions to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent limitations on any Asset Sale set forth herein or in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance any of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofother Financing Agreements.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Mandatory Prepayments. (a) When a. If at any Borrower sells or otherwise disposes time the outstanding balance of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in Revolving Credit Advances exceeds the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Borrowing Availability, Borrowers shall immediately repay the aggregate outstanding Revolving Credit Advances to the extent required to eliminate such excess. If any such excess remains after repayment in full of the aggregate outstanding Revolving Credit Advances, Borrowers shall provide cash collateral for the Letter of Credit Obligations in the manner set forth in Annex B to the extent required to eliminate such excess.
b. Immediately upon receipt by any Credit Party of proceeds of any asset disposition (including condemnation proceeds, but excluding proceeds of asset dispositions permitted by Section 6.8 (a), (b), (c), and (h)) or any sale of Stock of any Subsidiary of any Credit Party, unless a Reinvestment Notice is delivered to the Agent prior to or simultaneously with the receipt of such proceeds and the conditions set forth in the Section 1.18 are met, Borrowers shall prepay the outstanding Obligations in an amount equal to all Net Cash Proceeds. If the Borrowers shall send a Reinvestment Notice indicating that the Borrowers intend to use less than all of the Net Disposition Cash Proceeds of such salefor restoration or replacement, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments portion of the Term Loan Net Cash Proceeds which is not deposited into the reinvestment cash collateral account described in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments 1.18 below shall be applied to cash collateralize any Obligations related to prepayment of the outstanding Letters of Credit lastObligations. Any prepayment under this Section 1.2.2(b) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances shall be applied in accordance with the terms hereofSection 1.2.3 or Section 6.8(g) below.
(b) Notwithstanding c. If Holdings issues Stock, no later than the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event Business Day following the date of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiariesproceeds thereof (except equity, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of which will be used, within 90 days for permitted capital expenditures, the Revolving Advances to pay repurchasing of the cost Subordinated Notes, and the repurchase of such cost stock from employees and former employees for a maximum aggregate amount of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by $1,000,000), the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans Obligations in an amount equal to twenty-five percent (25%) all Net Cash Proceeds. Any such prepayment shall be applied in accordance with Section 1.2.3 below.
d. If for any Fiscal Year of Excess Cash Flow for each fiscal year beginning the Borrowers, commencing with the fiscal year ending December 31, 20222002, payable there shall be Excess Cash Flow, the Borrowers shall, on the relevant Excess Cash Flow Application Date, apply 75% of such Excess Cash Flow toward repayment of the outstanding Obligations as set forth in Section 1.2.3; provided that the required percentage of Excess Cash Flow to be applied to prepayments pursuant to this Section 1.2.2(d) shall be reduced to 50% for so long as the Borrowers' most recent Consolidated Senior Leverage Ratio is less than 2.0 to 1.0. Each such payment shall be made on a date (an "Excess Cash Flow Application Date") no later than five Business Days after the earlier of (i) the date upon delivery of which the financial statements of the Borrowers for the Fiscal Year with respect to Agent referred which such prepayment is made are required to in and required by Section 9.7 for be delivered as hereinafter provided, or (ii) the date such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to statements are actually delivered.
e. The Borrowers will immediately prepay the outstanding principal installments amount of the Term Loan and the Master Lease in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made entire Revolving Loan Commitment is terminated for any reason.
f. Upon the issuance or incurrence by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver any Credit Party or any of its Subsidiaries of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) Indebtedness permitted by BorrowersSection 6.3(a)), the Borrowers shall, no later than three (3) Business Days after shall prepay the receipt by Borrowers outstanding Obligations in an amount equal to 100% of the cash proceeds from any Net Cash Proceeds of such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of . Any such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will prepayment shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof1.2.3 below.
(e) Other than pursuant to g. Upon the receipt by any issuance Credit Party or any of Equity Interests its Subsidiaries of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, any Extraordinary Receipts the Borrowers shall provide Agent within ten (10) days’ written notice prepay the outstanding Obligations in an amount equal to 100% of the Net Cash Proceeds of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) firstExtraordinary Receipts, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.61.2.3 below.
Appears in 1 contract
Mandatory Prepayments. If the Company, in any transaction or series of related transactions, (a) When sells any Borrower sells Collateral (other than Vacation Ownership Interests in the ordinary course of business) notwithstanding that such disposition is prohibited in this Agreement or otherwise disposes (b) receives any property damage insurance award or any other insurance proceeds of any kind in connection with any Unit within which a Vacation Ownership Interest is situated and related to Completed Inventory Collateral resulting in Net Disposition Proceeds in excess of $500,000 and does not apply such funds to repair or replace the damaged Unit, then it shall, subject to, in the aggregate case of the foregoing clause (b), the terms of the Club Trust Agreement and any applicable Declaration, deposit the proceeds of such sale or receipt to the Collection Account as a mandatory prepayment on the Notes. In the case of clause (a) of the immediately preceding sentence, the Company shall pay to the Agent, in any fiscal yearaddition to the proceeds of the Collateral sold, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1as liquidated damages, Borrowers shall repay the Advances in and not as a penalty, an amount equal to the Net Disposition Proceeds product of such salethe amount equal to the Completed Inventory Collateral Value or Residual Interest Collateral Value, such repayments as applicable, of the Collateral sold times the percentage, if any, that would be applicable in connection with a Voluntary Termination of the Notes pursuant to be made promptly but in no event more than three (3Section 8.12(a) Business Days following receipt of such net proceeds, and until on the date of paymentsale of the Collateral. Payments by Designated Representative; Protective Advances . Notwithstanding any provision of any Collateral Documents, the Designated Representative on behalf of the Holders, in its Permitted Discretion, shall have the right, but not any obligation, at any time that the Company fails to do so, and from time to time, without prior notice, to: (a) obtain insurance (at the Company’s expense) covering any of the Collateral to the extent not obtained as required by the Company under any Collateral Documents; (b) discharge (at the Company’s expense) taxes or Liens affecting any of the Collateral that have not been paid in violation of any Collateral Documents or that jeopardize the Agent’s Lien priority in the Collateral, or, after the occurrence and continuance of a Potential Default, an Event of Default or a Termination Event; or (c) make any other payment (at the Company’s expense) for the administration, servicing, maintenance, preservation or protection of the Collateral, or, after the occurrence and continuance of a Potential Default, an Event of Default or a Termination Event, (each such proceeds advance or payment set forth in clauses (a), (b) and (c), a “Protective Advance”). Designated Representative shall be held in trust reimbursed for all Protective Advances pursuant to Section 8.10 and any Protective Advances shall bear interest at the Note Rate from the date the Protective Advance is paid by Designated Representative until it is repaid. No Protective Advance by Designated Representative shall be construed as a waiver by Agent, or any Holder of any Potential Default, Event of Default, Termination Event or any of the rights or remedies of Agent or any Holder. The foregoing shall not be deemed If the Company fails to be implied consent to make a required payment that is the subject of a Protective Advance, then the Company irrevocably authorizes disbursement of any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, funds to the outstanding principal installments Designated Representative, for the benefit of itself and the Holders, by way of direct payment of the Term Loan in the inverse order of the maturities thereofrelevant amount, and (y) second, to the remaining Advances (including cash collateralization of all interest or Obligations relating to any outstanding Letters of Credit in accordance with the provisions Section 8.10 without necessity of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances demand in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentSection 8.14.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Samples: Note Purchase and Collateral Trust and Security Agreement (BFC Financial Corp)
Mandatory Prepayments. (a) When Subject to Section 4.3 hereof, when any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Business, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds net proceeds of such salesale (i.e., gross proceeds less the reasonable costs of such sales or other dispositions), such repayments to be made promptly but in no event more than three one (31) Business Days Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(eb) Other than pursuant to In the event of any issuance or other incurrence of Indebtedness or Equity Interests (including any capital contribution by Holdings, Borrowers or any of Borrowers (i) contemplated by Section 6.5(dtheir respective Subsidiaries), Borrowers shall, no later than one (ii1) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year Business Day after the receipt by such Borrower, Holdings or any of their respective Subsidiaries of (iiia) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten the cash proceeds from any such issuance or incurrence of Indebtedness and (10b) days’ written notice the net cash proceeds of such any issuance of Equity Interests, and Agent as the case may be, repay the Advances in its sole discretion, within an amount equal to such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the cash proceeds or net cash proceeds received from the issuance of Equity Interests shall proceeds, as applicable. Such repayments will be applied to the outstanding Advances in such order as Agent may determine, subject to Borrowers’ ability to reborrow Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions terms hereof. The foregoing shall not be deemed to be implied consent to any such issuance or incurrence of Section 3.2(bIndebtedness or Equity Interest prohibited by the terms and conditions hereof.
(c) In the event that Borrowers, Holdings or any of their respective Affiliates receives or is entitled to any refund, return or other repayment of the purchase consideration paid under the Acquisition Agreement (or any portion thereof), provided however that Borrowers shall cause all such amounts to be remitted directly to Agent (or, if such amounts are nonetheless received by Borrowers, Holdings or any such Affiliate, Borrowers shall, no Default or Event later than one (1) Business Day after such receipt, cause all such amounts to be remitted to Agent) for repayment of Default has occurred and is continuingthe Obligations, such until all Obligations have been indefeasibly paid in full. Such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine in its sole discretion. Notwithstanding the foregoing, payments received by Borrowers pursuant to any escrow agreement executed in connection with an Acquisition Agreement in respect of a breach by the sellers thereunder of any representation, warranty, covenant or agreement set forth in or made by such sellers pursuant to such Acquisition Agreement, shall be remitted to Agent and applied by Agent to the Revolving Advances, subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Flotek Industries Inc/Cn/)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, Except with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Exposure Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) exists as a result of any taking or condemnation election made by the Initial Lender pursuant to Section 2.16(a), as to which Section 2.16 shall apply:
(i) If the Agent, on behalf of the Initial Lender, notifies the Borrower on any date prior to the Termination Date that an Exposure Excess exists as of such date (the “Excess Notification Date”), the Borrower shall, within three Business Days following the receipt by the Borrower of such notice, prepay the outstanding principal amount of any assets Advances then owing by the Borrower in an aggregate amount equal to the lesser of (x) the amount of the Exposure Excess and (y) the aggregate principal amount of all Advances then outstanding.
(ii) If the Agent, on behalf of the Initial Lender, notifies the Borrower that (notwithstanding any prepayment to be made pursuant to clause (i) above) an L/C Excess exists on any Excess Notification Date, the Borrower may, by not later than 5:00 p.m. on the Business Day following the date of receipt of such notice (the “Designation Deadline”), deliver to the Agent, the L/C Issuer and the L/C Administrator a notice in writing (the “Designation Notice”) identifying Letters of Credit to be terminated and/or directing the L/C Administrator on behalf of the L/C Issuer to reduce the Available Amount of identified Letters of Credit as to which partial drawings are permitted; provided, however, that any such notice shall only be a Designation Notice for the purposes hereof if, after giving effect to all such terminations or property reductions specified in such notice, the L/C Excess would be eliminated. If the L/C Administrator shall have received a Designation Notice by the Designation Deadline, the L/C Administrator shall deliver an L/C Termination Notice to the beneficiary of each Letter of Credit identified in the Designation Notice stating that, with effect from the fifth Business Day following the date of the delivery of the L/C Termination Notice, either the Available Amount of such Letter of Credit will be reduced or such Letter of Credit shall be applied terminated (as specified in the Designation Notice). If the L/C Administrator shall not have received a Designation Notice by the Designation Deadline, the L/C Administrator shall deliver an L/C Termination Notice to the beneficiary of one or more Letters of Credit stating that, with effect from the fifth Business Day following the date of delivery of the L/C Termination Notice, such Letter of Credit shall be terminated or the Available Amount of such Letter of Credit shall be reduced; provided, however, that the L/C Administrator shall first, to the extent permitted by the terms thereof, reduce the Available Amount of outstanding Letters of Credit selected by it in its sole discretion to the extent necessary to cause the L/C Excess to be eliminated and, second, if the Available Amount of all such Letters of Credit is not sufficient to eliminate such L/C Excess, terminate outstanding Letters of Credit selected by it in its sole discretion to the extent it reasonably deems necessary to eliminate such L/C Excess. In each case, each such Letter of Credit shall be terminated, or the Available Amount thereof reduced, in accordance with its terms with effect from the fifth Business Day following the date of delivery of the applicable L/C Termination Notice, and the Borrower shall be obligated immediately to repay any Reimbursement Obligation arising following the delivery of the applicable L/C Termination Notice and any drawings made by the applicable beneficiary under the Letter of Credit to which any such L/C Termination Notice applies.
(iii) Each prepayment of an Advance made pursuant to this Section 6.62.09(b) shall be made together with interest accrued to the date of such prepayment on the principal amount prepaid. Upon the termination or reduction in the Available Amount of a Letter of Credit pursuant to this Section 2.09(b), the Borrower shall pay all fees with respect to such Letter of Credit or such Available Amount (as applicable) that shall be accrued and unpaid through the date of such termination or reduction.
Appears in 1 contract
Samples: Credit Agreement (Interpublic Group of Companies, Inc.)
Mandatory Prepayments. (a) When To the extent required by Section 4.3 hereof, when any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course ordinary course of Business or Dispositions otherwise permitted under Section 7.1business, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds net proceeds of such salesale (i.e., gross proceeds less taxes arising from such sale and the reasonable costs of such sales or other dispositions), such repayments to be made promptly but in no event more than three one (31) Business Days Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ Borrower's ability to re-borrow reborrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans Advances in an amount equal to twenty-five thirty three percent (2533%) of Excess Cash Flow for each fiscal year beginning with the (not to exceed in any given fiscal year ending December 31, 2022an amount equal to the greater of (i) $4,500,000 or (ii) the scheduled principal amount amortized on account of the Term Loan for that year), payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof; provided however, Borrowers' requirement to make the Excess Cash Flow payments hereunder shall cease when the outstanding principal amount due under the Term Loan falls below Thirty Million Dollars ($30,000,000). In the event that the financial statements are statement referenced herein is not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c2.14(b), subject to adjustment when the financial statements are statement is delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statementsstatement.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Radnor Holdings Corp)
Mandatory Prepayments. Subject to Section 4.3 hereof, when Borrower (ai) When any Borrower sells or otherwise disposes of any First Priority Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business Business, (ii) issues Equity Interests in Borrower or Dispositions any of its Subsidiaries after the Closing Date (other than issuances of Equity Interests in Borrower or any of its Subsidiaries in connection with the Warrant to Purchase Shares of Common Stock dated as of June 23, 2011 issued by Borrower to SG-GN/SD, LLC, an Arkansas limited liability company, and any employee stock option arrangement or other employee-based compensation), or (iii) issues debt obligations of Borrower or any of its Subsidiaries after the Closing Date (other than the Senior Note Documents and any debt obligations issued after the Closing Date and otherwise permitted under pursuant to Section 7.17.8 hereof), Borrowers Borrower shall repay the Advances Advances, subject to the terms and conditions of the Intercreditor Agreement, in an amount equal to the Net Disposition Proceeds net cash proceeds of such salesale or issuance (i.e., gross proceeds less the reasonable costs of such sales or other dispositions), such repayments to be made promptly but in no event more than three one (31) Business Days Day following receipt of such net cash proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or the Intercreditor Agreement, and without any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan reduction in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c)Commitment Amount, subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ Borrower’s ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Goodman Networks Inc)
Mandatory Prepayments. (a) When Subject to Section 7.1 hereof, when any Borrower sells or otherwise disposes Loan Party Disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than (u) Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Business, (v) any Sale and Leaseback Transaction on Term Loan Priority Collateral owned by any Loan Party as of the Closing Date and consummated in accordance with Section 7.17.11 hereof, Borrowers (w) the Disposition of the GMF Collateral, (x) any Equity Interests issued by the Borrower, (y) any Extraordinary Receipts and (z) until the Term Loan is paid in full, any other Disposition of assets solely constituting Term Loan Priority Collateral of any Loan Party, the Borrower shall repay the Advances in an amount equal to the Net Disposition Proceeds of such saleDisposition, such repayments to be made promptly but in no event more than three five (35) Business Days following receipt of such net proceedsNet Proceeds, and until the date of payment, such proceeds Net Proceeds shall be held in trust for Agent; provided however, that if the Borrower shall deliver to the Agent a certificate of a senior officer of the Borrower to the effect that the applicable Loan Party’s intent to apply the Net Proceeds from such event (or a portion thereof specified in such certificate), to be reinvested within 180 days after receipt of such Net Proceeds to acquire similar assets subject to such event and certifying no Default has occurred and is continuing or would result therefrom then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds specified in such certificate. The foregoing shall not be deemed to be implied consent to any such sale Disposition otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments balance of the Term Loan Revolving Advances and Swing Loans (in the inverse order of the maturities thereof, determined by Agent) and (y) second, to be held by Agent as cash collateral to the remaining Advances (including cash collateralization extent of all Obligations relating to any outstanding Letters Letter of Credit in accordance with the provisions of Section 3.2(b), Obligations; provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) last in such order as Agent may determine, subject to Borrowers’ the Borrower’s ability to re-borrow reborrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document[Reserved.]
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowersany Loan Party, Borrowers the Borrower shall, no later than three five (35) Business Days after the receipt by Borrowers the Borrower of the cash proceeds Net Proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) the Net Proceeds of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (ysame manner as set forth in Section 2.20(a) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(fd) All proceeds received by Borrowers Loan Parties or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any BorrowersLoan Party (to the extent the Term Loans has not been paid in full, constituting ABL Priority Collateral), or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.66.6 hereof, provided however, that if the Borrower shall deliver to the Agent a certificate of a senior officer of the Borrower to the effect that the applicable Loan Party’s intent to apply the Net Proceeds from such event (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds to acquire similar assets subject to such event and certifying no Default has occurred and is continuing or would result therefrom then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds specified in such certificate.
Appears in 1 contract
Mandatory Prepayments. Subject to the provisions of this Section 2.8, if and to the extent at the end of any fiscal quarter following the occurrence of a Mandatory Prepayment and Leverage Ratio Event:
(a) When any the sum of, in each case without duplication, (i) the Indebtedness of Borrower sells and each Restricted Subsidiary secured by a Lien on assets of Borrower or otherwise disposes a Restricted Subsidiary that does not constitute a Permitted Lien, plus (ii) the Outstanding Amount (excluding the amount of any Collateral resulting in Net Disposition Proceeds in excess L/C Obligations under Performance Letters of $500,000 Credit) under this Agreement, exceeds
(b) 20% of Total Consolidated Stockholders Equity (excluding non-controlling interests), the Borrower shall reduce the Outstanding Amount by the amount of such excess. For purposes of the foregoing, Indebtedness, Restricted Subsidiary, Lien, Permitted Lien and Total Consolidated Stockholders Equity shall have the meanings given to such terms in the aggregate in any most restrictive outstanding indenture for Borrower’s senior notes. Commencing with the end of the fiscal yearquarter following satisfaction of the Interest Coverage Trigger for two consecutive quarters, other than Inventory in the Ordinary Course provisions of Business or Dispositions otherwise permitted under this Section 7.12.8 shall no longer be applicable, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments unless and until a Mandatory Prepayment and Leverage Ratio Event thereafter occurs. Amounts to be applied in connection with prepayments made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds pursuant to this Section 2.8 shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) applied, first, to the outstanding principal installments prepayment of the Term Loan in the inverse order of the maturities thereofRevolving Loans, and (y) second, to if the remaining Advances (including cash collateralization aggregate principal amount of all Obligations relating to any Revolving Loans then-outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to less than the amount of such Net Disposition Proceeds prepayments (because L/C Obligations constitute a portion of the Outstanding Amount), Borrower shall, to the extent of the balance, deposit an amount in cash equal to 100% of such L/C Obligations in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment of Revolving Loans pursuant to this Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount 2.8 shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions first, to funding sent forth ABR Loans, second, to Term Benchmark Loans, and third, to RFR Loans, and in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31case, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make pro rata between the Class A Revolving Loans and the Class B Revolving Loans based on each Lender’s Percentage Interest. Each prepayment required by of the Loans under this Section 2.20(c), subject 2.8 shall be accompanied by accrued interest to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) date of such cash proceeds in prepayment on the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofamount prepaid.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Samples: Credit Agreement (Lennar Corp /New/)
Mandatory Prepayments. (a) When Subject to Section 4.3 hereof, when any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course ordinary course of Business or Dispositions otherwise permitted under Section 7.1business, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds net proceeds of such salesale (i.e., gross proceeds less the reasonable costs of such sales or other dispositions), such repayments to be made promptly but in no event more than three two (32) Business Days Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, first to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ' ability to re-borrow reborrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans Advances in an amount equal to twenty-five percent (25%) 75% of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31commencing on or after January 1, 20222000, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty ninety (12090) days after the end of each such fiscal year, which amount shall be applied first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofthereof and, second, to the remaining Advances in such order as Agent may determine subject to Borrowers' ability to reborrow Revolving Advances in accordance with the terms hereof. In the event that the financial statements are statement is not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c2.14(b), subject to adjustment when the financial statements are statement is delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statementsstatement.
(dc) Upon the consummation of the Xxxxxxx Divestiture, the Borrowers shall repay the Revolving Advances in an amount (the "Xxxxxxx Divestiture Revolving Amount") equal to the applicable Advance Rate multiplied by the amount of Eligible Receivables and Eligible Inventory at Xxxxxxx, such repayments to be made concurrently with the consummation of the Xxxxxxx Divestiture. In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowersaddition, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, shall repay the Advances in an amount equal to net proceeds (i.e., gross proceeds less reasonable transaction costs) from the Xxxxxxx Divestiture in excess of the Xxxxxxx Divestiture Revolving Amount, such repayments to be made within one hundred percent (100.00%1) Business Day of receipt of such cash net proceeds, and until paid, such proceeds shall be held in the case of such incurrence or issuance of Indebtednesstrust for Agent. Such repayments will shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) and, second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine determine, subject to Borrowers’ ' ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Samples: Revolving Credit, Term Loan, Guaranty and Security Agreement (Sunsource Inc)
Mandatory Prepayments. (a) When Subject to Section 4.3 hereof, when any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Business, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds net proceeds of such salesale (i.e., gross proceeds less the reasonable costs of such sales or other dispositions), such repayments to be made promptly but in no event more than three one (31) Business Days Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(eb) Other In the event of any issuance or other incurrence of Indebtedness (other than Indebtedness permitted pursuant to Section 7.8 hereof) by Borrowers or the issuance of any Equity Interests by any Borrower, Borrowers shall, no later than one (1) Business Day after the receipt by Borrowers of (i) the cash proceeds from any such issuance or incurrence of Indebtedness or (ii) the net cash proceeds of any issuance of Equity Interests (other than Equity Interests issued to employees, officers or directors of Borrowers (i) contemplated by Section 6.5(dany Borrower), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitionsas applicable, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interestsrepay the Advances, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All , in an amount equal to the net cash proceeds received by Borrowers in the case of such incurrence or Agent (i) under any insurance policy on account issuance of damage Indebtedness or destruction an issuance of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall Equity Interests. Such repayments will be applied in accordance with the same manner as set forth in Section 6.62.21(b) hereof.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Gaiam, Inc)
Mandatory Prepayments. (a) When Upon receipt by any Borrower sells or otherwise disposes Group Member of Net Cash Proceeds arising from an Asset Sale of any Collateral resulting Collateral, the Borrower shall immediately prepay the Loans (or provide cash collateral in Net Disposition Proceeds in excess respect of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course Letters of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Credit) in an amount equal to the Net Disposition Proceeds 100% of such sale, Net Cash Proceeds. Any such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments mandatory prepayment shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with clause (b) below.
(b) Subject to the provisions of Section 3.2(b2.13(g) (Payments and Computations), provided however that any prepayments made by the Borrower required to be applied in accordance with this clause (b) shall be applied as follows: first, to repay the outstanding principal balance of the Swing Loans until such Swing Loans shall have been repaid in full; second, to repay the outstanding principal balance of the Revolving Loans until such Revolving Loans shall have been paid in full; and then, if no Default or an Event of Default has occurred and is continuing, to provide cash collateral for any Letter of Credit Obligations in an amount equal to 105% of such repayments Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) until all such Letter of Credit Obligations have been fully cash collateralized in the manner set forth therein.
(c) If at any time, the aggregate principal amount of Revolving Credit Outstandings exceeds the aggregate Maximum Credit at such time, the Borrower shall be applied forthwith prepay the Swing Loans first and then the Revolving Loans then outstanding in an amount equal to such excess. If any such excess remains after repayment in full of the aggregate outstanding Swing Loans and Revolving Loans, the Borrower shall provide cash collateralize collateral for the Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) in an amount equal to 105% of such excess.
(d) The Borrower hereby irrevocably waives the right to direct, during a Liquidity Event Period, the application of all funds in the Cash Collateral Account and agrees that the Administrative Agent may and, upon the written direction of the Requisite Lenders given at any time during such Liquidity Event Period, shall (i) deliver a Blockage Notice to each Deposit Account Bank for each Approved Deposit Account and (ii) except, as provided in Section 2.13(g) (Payments and Computations) and clause (b) above, following the occurrence and during the continuance of an Event of Default, apply all payments in respect of any Obligations related and all available funds in the Cash Collateral Account on a daily basis as follows: first, to repay the outstanding principal amount of the Swing Loans until such Swing Loans have been repaid in full; second, to repay the outstanding principal balance of the Revolving Loans until such Revolving Loans shall have been repaid in full; and then to any other Obligation then due and payable. The Administrative Agent agrees to apply such funds and the Borrower consents to such application. If (i) following such application, (ii) outside of a Liquidity Event Period or (iii) after all Letters of Credit last) in such order as Agent may determineshall have expired or be fully drawn and all Revolving Credit Commitments shall have been terminated, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
there are no Loans outstanding and no other Obligations that are then due and payable (b) Notwithstanding the foregoingand, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no if an Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiariescontinuing, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have cash collateral has been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans provided in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery 105% of the financial statements Letter of Credit Obligations in the manner required in Section 9.3 (Actions in Respect of Letters of Credit)), then the Administrative Agent shall cause any remaining funds in the Cash Collateral Account to Agent referred be paid at the written direction of the Borrower (or, in the absence of such direction, to the Borrower or another Person lawfully entitled thereto). AMENDED AND RESTATED CREDIT AGREEMENT TXXXX HEALTHCARE CORPORATION
(e) At any time during a Liquidity Event Period, subject to Section 2.9(d) all amounts collected in and required by the Concentration Account pursuant to Section 9.7 for such fiscal year but in any event not later than one hundred twenty 7.11 (120Cash Management) days after the end of each such fiscal year, which amount shall be applied on each Business Day by the Administrative Agent first, to prepay the outstanding principal installments Loans (including Swing Loans) and then, if an Event of the Term Loan in the inverse order Default shall have occurred and be continuing, to provide cash collateral for any Letter of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances Credit Obligations in an amount equal to one hundred percent (100.00%) 105% of such cash proceeds Letter of Credit Obligations in the case manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) until all such Letter of Credit Obligations have been fully cash collateralized in the manner set forth therein. Following such application, the Administrative Agent shall, subject to Section 2.9(d) cause any remaining funds in the Concentration Account to be paid at the written direction of the Borrower (or, in the absence of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) firstdirection, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(bBorrower or another Person lawfully entitled thereto), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes 6.1 In the event the Company consummates a Sale of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal yearCompany prior to the Maturity Date, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers Company shall repay the Advances Noteholder, in cash, in an amount equal to the Net Disposition Principal Amount together with all accrued and unpaid interest thereon. Any repayment pursuant to this paragraph in connection with a Sale of the Company shall be subject to any required tax withholdings and shall be paid by the Company simultaneously with the Closing of the Sale of the Company or promptly following the Sale of the Company in connection with reasonable payment procedures established in connection with such Sale of the Company and reasonably satisfactory to the Noteholder. If the Company believes withholding is required, it shall notify the Noteholder at least five (5) days in advance and the Company and the Noteholder shall use reasonable best efforts to avoid any withholding.
6.2 In the event the Company or the Surviving Company receives any Share Purchase Agreement Proceeds of such sale(as defined in the Purchase Agreement) while any Obligations (as defined in the Purchase Agreement) remain outstanding, such repayments to be made promptly the Company and the Surviving Company shall promptly, but in no any event more than three within one (31) Business Days following receipt of such net proceedsDays, and until the date of payment, deliver such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances Noteholder in accordance with the terms hereof.
of the Purchase Agreement to be applied to repay such Obligations until all such Obligations have been indefeasibly paid in full in cash, such payment to be applied first to payment of any costs and expenses incurred by the Noteholder in connection with this Note and the other Loan Documents, second to payment of accrued and unpaid interest on the Loans and third to payment of unpaid principal of the Loans and as between the interest and principal amounts outstanding hereunder and under the Bridge Note (b) Notwithstanding as defined in the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(aPurchase Agreement), so long any such amounts applied to pay interest or principal, as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiariesapplicable, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect pro rata to such amount shall be released and shall be available to Borrowers as a Revolving Advanceamounts of interest or principal, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied , outstanding hereunder and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Documentthereunder.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Mandatory Prepayments. (a) When Subject to Section 4.3 hereof, when any Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Business, Borrowers shall repay the Advances Advances, subject to the right to reborrow hereunder, in an amount equal to the Net Disposition Proceeds net proceeds of such salesale (i.e., gross proceeds less the reasonable costs of such sales or other dispositions), such repayments to be made promptly but in no event more than three one (31) Business Days Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for AgentAgent pursuant to an express trust hereby, separate and segregated from all other funds, assets and property of Borrowers. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments Repayments under this paragraph (a) shall be applied (x) first, to the outstanding principal installments balance of the Term Loan Revolving Advances and Swing Loans (in the inverse order of the maturities thereof, and (ydetermined by Agent) second, to be held by Agent as cash collateral to the remaining Advances (including cash collateralization extent of all Obligations relating to any outstanding Letters Letter of Credit Obligations and third, to the outstanding principal balance of the FILO Advances, provided that, after the occurrence and during the continuance of an Event of Default, such repayments shall be applied to the Advances and the other Obligations in such order as Agent may determine in its sole discretion.
(b) Upon either (i) the issuance and/or incurrence of any Indebtedness for borrowed money (other than Indebtedness permitted in accordance with the provisions of Section 3.2(b7.8) by any Borrower or (ii) the issuance of any additional Equity Interests (other than Equity Interests issued to employees, officers or directors of any Borrower) or receipt of any additional capital contributions by any Borrower, Borrowers shall repay the Advances, subject to the right to reborrow hereunder, in an amount equal to the net cash proceeds of such issuance, incurrence and/or capital contribution (i.e., gross proceeds less the reasonable costs of such issuance, incurrence and/or capital contribution), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall to be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) made promptly but in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
no event more than one (b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (21) Business Days Day following receipt of such Net Disposition Proceeds net cash proceeds, and until the date of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of payment, such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds proceeds shall be applied by held in trust for Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount an express trust hereby, separate and segregated from all other funds, assets and property of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestmentBorrowers. The foregoing shall not be deemed to be implied consent to any Disposition such issuance and/or incurrence of Indebtedness or other transaction issuance of additional Equity Interests otherwise prohibited by the terms and conditions hereof (to the extent, if any, of any such prohibition contained herein). Repayments under this Agreement or any Other Document.
subparagraph (cb) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments balance of the Term Loan Revolving Advances and Swing Loans (in the inverse order of the maturities thereof and (y) determined by Agent), second, to be held by Agent as cash collateral to the remaining Advances (including cash collateralization extent of all Obligations relating to any outstanding Letters Letter of Credit in accordance with Obligations and third, to the provisions outstanding principal balance of Section 3.2(b)the FILO Advances, provided however that if no Default or that, after the occurrence and during the continuance of an Event of Default has occurred and is continuingDefault, such repayments shall be applied to cash collateralize any the Advances and the other Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Green Plains Inc.)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes In the event of any Collateral resulting in Net Disposition Proceeds in excess termination of $500,000 in all the aggregate in any fiscal yearRevolving Credit Commitments, other than Inventory in the Ordinary Course Borrower shall, on the date of Business such termination, repay or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in prepay all its outstanding Revolving Credit Borrowings and all outstanding Swingline Loans and replace all outstanding Letters of Credit and/or deposit an amount equal to the Net Disposition Proceeds L/C Exposure in cash in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties. In the event of any partial reduction of the Revolving Credit Commitments, then (i) at or prior to the effective date of such salereduction, the Administrative Agent shall notify the Borrower and the Revolving Credit Lenders of the Aggregate Revolving Credit Exposure after giving effect thereto and (ii) if the Aggregate Revolving Credit Exposure would exceed the Total Revolving Credit Commitment after giving effect to such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceedsreduction or termination, and until then the Borrower shall, on the date of paymentsuch reduction or termination, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied repay or prepay Revolving Credit Borrowings or Swingline Loans (xor a combination thereof) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including and/or replace or cash collateralization of all Obligations relating to any collateralize outstanding Letters of Credit in an amount sufficient to eliminate such excess.
(b) Not later than the tenth day following the receipt of any Net Cash Proceeds of any Asset Sale, the Borrower shall apply 100% of the Net Cash Proceeds received with respect thereto to prepay outstanding Term Loans in accordance with Section 2.13(f); provided that, if the provisions Borrower shall deliver to the Administrative Agent a certificate of Section 3.2(b)a Financial Officer of the Borrower to the effect that the Borrower and the Subsidiaries intend to apply the Net Cash Proceeds from such Asset Sale (or a portion thereof specified in such certificate) within 330 days after receipt thereof, provided however to acquire real property, equipment or other assets to be used in the business of the Borrower and the Subsidiaries, and certifying that if no Default or Event of Default has occurred and is continuing, such repayments then no prepayment shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds required pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances this paragraph in the amount respect of the Net Disposition Cash Proceeds of such Asset Sale (or the portion thereof specified in such portion thereofcertificate, if applicable) except to pay the actual cost extent of reinvestment and any such Net Cash Proceeds that have not been so applied by the reserve with respect end of such 330-day period, at which time a prepayment shall be required in an amount equal to such amount shall be released and shall be available to Borrowers as a Revolving Advance, Net Cash Proceeds that have not been so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Documentapplied.
(c) Borrowers shall prepay In the outstanding amount of event and on each occasion that a Public Equity Offering occurs, the Term Loans in an amount equal to twenty-five percent Borrower shall, substantially simultaneously with (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty the third Business Day next following) the occurrence of such Public Equity Offering, apply 50% of the Net Cash Proceeds therefrom to prepay outstanding Term Loans in accordance with Section 2.13(f); provided, however, that, so long as the Net Cash Proceeds of each such Public Equity Offering are used to repurchase, retire or otherwise redeem for value Redeemable Preferred Stock and/or prepay any outstanding Permitted Subordinated Debt, the Borrower shall not be required to apply the first $50,000,000 of Net Cash Proceeds from all such Public Equity Offerings to the prepayment of Term Loans in accordance with this Section.
(120d) No later than the earlier of (i) 90 days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments year of the Term Loan in Borrower, commencing with the inverse order of fiscal year ending on December 31, 2001, and (ii) the maturities thereof. In the event that date on which the financial statements with respect to such period are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this delivered pursuant to Section 2.20(c5.04(a), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent Borrower shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(dprepay outstanding Term Loans in accordance with Section 2.13(f) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an aggregate principal amount equal to one hundred percent (100.00%) 50% of Excess Cash Flow for the fiscal year then ended; provided, however, that such percentage shall be decreased to 25% for any year if the Leverage Ratio at the end of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments year shall be applied less than 1.25 to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof1.00.
(e) Other than pursuant to In the event that any issuance Loan Party or any subsidiary of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers a Loan Party shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received receive Net Cash Proceeds from the issuance or other disposition of Equity Interests Indebtedness for money borrowed of any Loan Party or any subsidiary of a Loan Party (including Permitted Subordinated Debt and Other Subordinated Debt but excluding all other Indebtedness for money borrowed permitted pursuant to Section 6.01), the Borrower shall, substantially simultaneously with (and in any event not later than the first Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay outstanding Term Loans in accordance with Section 2.13(f); provided, however, that up to 50% of the first $150,000,000 of Net Cash Proceeds from all issuances of Permitted Subordinated Debt and up to 100% of any such Net Cash Proceeds thereafter shall not be required to be applied to the Revolving Advances. If Agent orders an appraisal prepayment of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit Loans in accordance with this Section to the provisions of Section 3.2(b), provided however extent that if no Default or Event of Default has occurred and is continuing, such repayments shall be Net Cash Proceeds are applied to cash collateralize any Obligations related to outstanding Letters repurchase, redeem or otherwise retire for value Redeemable Preferred Stock issued on the Closing Date and accrued pay-in-kind dividends thereon (whether paid or unpaid on the date of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofrepurchase, redemption or retirement).
(f) All proceeds received by Borrowers or Agent Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Term Loans under Section 2.11(a).
(g) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.13, (i) under any insurance policy on account a certificate signed by a Financial Officer of damage or destruction the Borrower setting forth in reasonable detail the calculation of any assets or property the amount of any Borrowers, or such prepayment and (ii) as a result to the extent practicable, at least three days prior written notice of any taking such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the principal amount of each Loan (or condemnation portion thereof) to be prepaid. All prepayments of any assets or property Borrowings under this Section 2.13 shall be subject to Section 2.16, but shall otherwise be without premium or penalty.
(h) Amounts to be applied pursuant to this Section 2.13 or Section 2.11(a) to the prepayment or repayment of Term Loans and Revolving Loans shall be applied, as applicable, first to reduce outstanding ABR Term Loans and ABR Revolving Loans. Any amounts remaining after each such application shall, at the option of the Borrower, be applied to prepay Eurodollar Term Loans or Eurodollar Revolving Loans, as the case may be, immediately and/or shall be deposited in accordance with Section 6.6.the Prepayment Account (as defined below). The Administrative Agent shall apply any cash deposited in the Prepayment Account (i) allocable to Term Loans to prepay Eurodollar Term Loans and (ii) allocable to Revolving Loans to prepay Eurodollar Revolving Loans, in each case on the last day of their respective Interest Periods (or, at the
Appears in 1 contract
Samples: Credit Agreement (Amis Holdings Inc)
Mandatory Prepayments. Mandatory repayments of Term Loans from (ai) When any Borrower sells or otherwise disposes 100% of the net cash proceeds of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 asset sales and dispositions (including insurance, condemnation and casualty events), subject to exceptions and reinvestment rights substantially as set forth in the aggregate in any fiscal yearDraft OpCo Credit Agreement, other than Inventory (ii) 100% of the net proceeds from issuance or incurrence of debt, subject to exceptions substantially as set forth in the Ordinary Course Draft OpCo Credit Agreement, (iii) 100% of Business the net proceeds from issuances of equity by, or Dispositions otherwise capital contributions to, New OpCo Holdings and its Subsidiaries, subject to exceptions substantially as set forth in the Draft OpCo Credit Agreement (including for equity proceeds specifically used to finance permitted under Section 7.1investments and capital expenditures), Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments (iv) a portion to be made promptly but in no event more than three (3) Business Days following receipt mutually agreed of such the net proceedsproceeds from issuances of equity by, and until the date or capital contributions to, any direct or indirect parent of paymentNew OpCo Holdings, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed subject to exceptions to be implied consent to any such sale otherwise prohibited by mutually agreed, (v) commencing with the terms and conditions hereof. Such repayments shall be applied fiscal year ended December 31, 2011, 75% (x) first, to the outstanding principal installments of the Term Loan with step downs based on meeting a Total Leverage Ratio (as defined in the inverse order Draft OpCo Credit Agreement) to be mutually agreed and so long as no default or event of default under the maturities thereofSenior Secured Facilities is in existence) of annual excess cash flow (to be defined on a basis to be mutually agreed) of New OpCo Holdings and its subsidiaries, and (yvi) second100% of the net cash proceeds of any amounts received in repayment, or otherwise on account, of any loan or advance made to the remaining Advances a Native American tribe pursuant to any Native American contract relating to a Native American project (including cash collateralization of all Obligations relating to reimbursements from the Gun Lake project after the Closing Date but excluding reimbursements from the Gun Lake project received on the Closing Date (other than any outstanding Letters of Credit in accordance with the provisions of Section 3.2(bExcess Gun Lake Reimbursement), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) ). Notwithstanding the foregoing, if any default or event of default exists at the time of any mandatory repayment of Term Loans otherwise required above, Swing Line Loans, Revolving Loans and Letters of Credit shall first be repaid and/or cash collateralized, as applicable, in the amount otherwise required to be applied to the Term Loans (with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment no permanent reduction in commitments under Section 2.20(a)the Revolving Credit Facility, so long as no Event payment or bankruptcy default or event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election default exists), with any excess to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent as otherwise required above (without regard to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vithis sentence). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Samples: Restructuring Support Agreement (Station Casinos Inc)
Mandatory Prepayments. (a) When If, subsequent to the Closing Date and continuing through the second anniversary of the Closing Date, Newco shall make any Borrower sells payment or otherwise disposes other distribution to any stockholder in respect of Newco's Capital Stock or payment in respect of any Collateral resulting in Net Disposition Proceeds in excess redemption or repurchase of $500,000 in the aggregate in any fiscal yearits Capital Stock, other than Inventory in pursuant to the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Merger Agreement, Borrowers shall repay the Advances in an amount equal to such payment shall be applied toward the prepayment of the Term Loans as set forth in Section 2.10(c).
(b) If, subsequent to the Closing Date, either Borrower or any of its Subsidiaries shall receive Net Disposition Proceeds from any Asset Sale (other than in accordance with Section 6.6(b)), 100% of such saleNet Proceeds shall be promptly applied first, toward the prepayment of the Term Loans as set forth in Section 2.10(c) and second, to the prepayment of the Revolving Credit Loans; notwithstanding the foregoing, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing Borrower shall not be deemed required to pay any Net Proceeds to the Administrative Agent for application to the Term Loans until such time as such aggregate Net Proceeds received exceeds $1,000,000 and, upon such payment, Borrowers shall only be implied consent required to any pay such sale otherwise prohibited by Net Proceeds to the terms Administrative Agent at such time, and conditions hereof. Such repayments from time to time, as such aggregate Net Proceeds exceeds $1,000,000.
(c) Prepayments made pursuant to this Section 2.10 shall be applied by the Administrative Agent to the prepayment of the Term Loans (x) first, pro rata according to the outstanding principal amounts thereof held by the respective Lenders). Prepayments of the Term Loans pursuant to this Section 2.10 shall be applied to the remaining installments of the each Term Loan in the inverse order of their scheduled maturities. Amounts prepaid on account of the maturities Term Loans may not be reborrowed.
(d) Each Borrower shall give the Administrative Agent (which shall promptly notify each Lender) at least one Business Day's notice of each prepayment or mandatory prepayment pursuant to this Section 2.10 setting forth the date and amount thereof. Any prepayment of Loans pursuant to this Section 2.10 shall be applied, and (y) secondfirst, to any such Base Rate Loans then outstanding and the remaining Advances (including cash collateralization balance of all Obligations relating such prepayment, if any, to any outstanding Letters such Eurodollar Loans then outstanding; provided that prepayments of Credit in accordance Eurodollar Loans, if not on the last day of the Interest Period with respect thereto, shall, at such Borrower's option be prepaid subject to the provisions of Section 3.2(b), provided however that if no Default Sections 2.20 and 2.21 or Event the amount of Default has occurred such prepayment (after application to any Base Rate Loans) shall be deposited with the Administrative Agent as cash collateral for the Loans on terms reasonably satisfactory to the Administrative Agent and is continuing, such repayments thereafter shall be applied in the order of the Interest Periods next ending most closely to cash collateralize any Obligations related the date such prepayment is required to outstanding Letters be made and on the last day of Credit last) in each such order as Agent may determineInterest Period. After such application, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no unless an Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of continuing, any remaining interest earned on such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds cash collateral shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect paid to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentBorrower.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Mandatory Prepayments. (a) When any The Borrower sells or otherwise disposes shall prepay the Loans in accordance with the following:
(i) Concurrently with the incurrence of any Collateral resulting in Net Disposition Proceeds in excess Indebtedness by any Loan Party or any of $500,000 in the aggregate in any fiscal year, its Subsidiaries (other than Inventory in the Ordinary Course of Business or Dispositions otherwise Indebtedness permitted under Section 7.19.01), Borrowers the Borrower shall repay (x) prepay the Advances Loans in an amount equal to one hundred percent (100%) of the applicable Net Debt Proceeds, to be applied as set forth in Section 4.02(b) and (y) pay the applicable Prepayment Premium, if any. Nothing in this Section 4.02(a)(i) 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 Loan Agreement.
(ii) Within five (5) Business Days of the receipt by any Loan Party or any of its Subsidiaries of any proceeds from any Disposition under Section 9.04(a) or (b) in excess of $1,500,000, the Borrower shall prepay the Loans in an amount equal to one hundred percent (100%) of the Net Disposition Proceeds of from such saleDisposition, such repayments to be made promptly but applied as set forth in no event more than three (3) Business Days following receipt Section 4.02(b), and, solely to the extent such Disposition is with respect to all or substantially all of such net proceedsthe assets of the Loan Parties and their Subsidiaries taken as a whole, and until the Borrower shall pay the applicable Prepayment Premium, if any; provided, however, that the Borrower may, at its option by written notice to the Administrative Agent on or prior to the date of paymentthe Disposition giving rise to such Net Disposition Proceeds, within one hundred eighty (180) days after such proceeds shall be held event, reinvest or commit to reinvest such Net Disposition Proceeds in trust for Agent. The foregoing shall not be deemed fixed assets to be implied consent to any such sale otherwise prohibited by used in the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments business of the Term Loan in the inverse order of the maturities thereofBorrower and its Subsidiaries so long as (A) [reserved], and (yB) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds Borrower certifies in fixed or capital assets or other assets useful writing to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Administrative Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, (C) such repayments Net Disposition Proceeds are held in an account subject to an Account Control Agreement while awaiting reinvestment and (D) the Borrower shall be applied in compliance with Section 9.13(b) on a pro forma basis after giving effect to cash collateralize such reinvestment; provided further, that, if such Net Disposition Proceeds are committed to be reinvested within such one hundred eighty (180) period, such Net Disposition Proceeds shall actually be reinvested within an additional one hundred twenty (120) day period. Nothing in this Section 4.02(a)(ii) shall be construed to permit or waive any Obligations related to outstanding Letters Default or Event of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with Default arising from any Disposition not permitted under the terms hereofof this Loan Agreement.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten Within five (105) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance Business Days of the Term receipt by any Loan exceeds Party or any of its Subsidiaries of any proceeds from any Casualty Event in excess of $1,000,000, the Term Loan Collateral Amount at Borrower shall prepay the time of such issuance of Equity Interests. If Agent does not order Loans in an appraisal of the Equipment and Real Property, then amount equal to one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00100%) of such net cash proceeds received from the issuance of Equity Interests shall Net Casualty Proceeds, to be applied as set forth in Section 4.02(b); provided, however, that the Borrower may, at its option by written notice to the Revolving Advances. If Administrative Agent orders an appraisal no later than one hundred eighty (180) days following the occurrence of the Equipment and Real Property and Casualty Event resulting in such Net Casualty Proceeds, apply such Net Casualty Proceeds to the then outstanding balance rebuilding or replacement of such damaged, destroyed or condemned assets or property or reinvested in fixed assets to be used in the business of the Term Loan exceeds Borrower and its Subsidiaries so long as such Net Casualty Proceeds are in fact used or are committed to be used to rebuild or replace the Term Loan Collateral Amountdamaged, then destroyed or condemned assets or property within such one hundred percent eighty (100.00%180) days following the receipt of such net cash proceeds received from Net Casualty Proceeds, with the issuance amount of Equity Interests shall Net Casualty Proceeds not so used after such period to be applied as set forth in Section 4.02(b); so long as (xA) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, and the Borrower certifies in writing to the Administrative Agent that no Default or Event of Default has occurred and is continuing, (B) such repayments Net Casualty Proceeds are held in an account subject to an Account Control Agreement while awaiting reinvestment and (C) the Borrower shall be applied in compliance with Section 9.13(b) on a pro forma basis after giving effect to cash collateralize such reinvestment; provided further, that, if such Net Casualty Proceeds are committed to be reinvested within such one hundred eighty (180) day period, such Net Casualty Proceeds shall be actually reinvested within an additional one hundred twenty (120) days. Nothing in this Section 4.02(a)(iii) shall be construed to permit or waive any Obligations related to outstanding Letters Default or Event of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with Default arising, directly or indirectly, from any Casualty Event. It is understood and agreed the terms hereofPrepayment Premium is not due and payable for payments under this clause (iii).
(fiv) All proceeds received by Borrowers [reserved].
(v) [reserved].
(vi) [reserved].
(vii) Notwithstanding anything to the contrary herein, immediately upon any acceleration of any Obligations pursuant to Section 10.02, (whether before, during or Agent after the commencement of any proceeding under the Bankruptcy Code involving the Borrower or any other Loan Party), the Borrower shall immediately repay all the Loans, together with the applicable Prepayment Premium, unless only a portion of the Loans is so accelerated (in which case the portion so accelerated shall be so repaid together with the applicable Prepayment Premium). The parties hereto acknowledge and agree that the Prepayment Premium referred to in this Section 4.02(a)(vii) (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowersis additional consideration for providing the Loans, or (ii) as constitutes reasonable liquidated damages to compensate the Lenders for (and is a result proportionate quantification of) the actual loss of the anticipated stream of interest payments upon an early prepayment of the Loans (such damages being otherwise impossible to ascertain or even estimate for various reasons, including, without limitation, because such damages would depend on, among other things, (x) when the Loans might otherwise be repaid and (y) future changes in interest rates which are not readily ascertainable on the Closing Date), and (iii) is not a penalty to punish the Borrower for its early prepayment of the Loans or for the occurrence of any taking or condemnation Event of Default.
(viii) Concurrently with any assets or property Change of Control, the Borrower shall repay all of the Loans, together with the applicable Prepayment Premium, if any, and all other outstanding Obligations.
(ix) Within five (5) Business Days after the date that the annual consolidated financial statements of the Borrower and its Subsidiaries are required to be delivered pursuant to Section 8.01(c) after the end of each fiscal year ending after the Closing Date, beginning with the fiscal year ending December 31, 2021, the Borrower will prepay the Loans, to be applied as set forth in Section 4.02(b), in an amount equal to (x) the Prepayment Percentage of Excess Cash Flow, if any, for such fiscal year minus (y) other than to the extent made from Net Debt Proceeds from any long-term Indebtedness, the principal amount of Loans voluntarily prepaid in accordance with Section 6.64.01 during such fiscal year.
Appears in 1 contract
Samples: Loan Agreement (Mimedx Group, Inc.)
Mandatory Prepayments. (a) When If the Parent or any Borrower sells or otherwise disposes Subsidiary shall issue and sell any Capital Stock, 100% of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds thereof shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by promptly applied toward the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments prepayment of the Term Loan in the inverse order Loans and reduction of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit Commitment as set forth in accordance with the provisions of Section 3.2(b2.8(d), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding If, subsequent to the foregoingClosing Date, the Borrower or any of its Subsidiaries shall receive Net Proceeds from any Asset Sale (other than in accordance with Section 6.6(b)), 100% of such Net Proceeds shall be promptly applied toward the prepayment of the Loans and reduction of the Commitments as set forth in Section 2.8(d); provided that up to $5,000,000 of Net Proceeds from all such Asset Sales in each fiscal year need not be applied to the prepayment of the Loans and the reduction of the Commitments.
(c) The Borrower will take all steps necessary to ensure compliance with Section 2.4(a).
(d) Prepayments made pursuant to this Section 2.8 shall be applied by the Borrower, subject to the next succeeding sentence, to reduce permanently the Revolving Credit Commitments (pro rata according to the amounts of the Revolving Credit Commitments of the respective Lenders). Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment of first, Swing Line Loans, second, Revolving Credit Loans to the extent, if any, that the sum of the aggregate outstanding principal amount of Revolving Credit Loans, Swing Line Loans and Letter of Credit Obligations exceeds the amount of the aggregate Revolving Credit Commitments as so reduced and third, Competitive Bid Loans.
(e) The Borrower shall give the Administrative Agent (which shall promptly notify each Lender) at least one Business Day's notice of each prepayment or mandatory reduction pursuant to this Section 2.8 setting forth the date and amount thereof. Any prepayment of Revolving Credit Loans pursuant to this Section 2.8 shall be applied, first, to any such Base Rate Loans then outstanding and the balance of such prepayment, if any, to any such Eurodollar Loans then outstanding; provided that prepayments of Eurodollar Loans, if not on the last day of the Interest Period with respect thereto, shall, at the Borrower's option, be prepaid subject to the provisions of Sections 2.18 and 2.19 or the amount of such prepayment (after application to any Net Disposition Proceeds which would otherwise give rise Base Rate Loans) shall be deposited with the Administrative Agent as cash collateral for the Loans on terms reasonably satisfactory to a the Administrative Agent and thereafter shall be applied in the order of the Interest Periods next ending most closely to the date such prepayment under Section 2.20(a)is required to be made and on the last day of each such Interest Period. After such application, so long as no unless an Event of Default shall have occurred and be continuing and the Borrowing Agent continuing, any remaining interest earned on such cash collateral shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful be paid to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentBorrower.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Mandatory Prepayments. (a) When any Unless converted to Term Loans, the Borrower sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances outstanding Construction Loans on the Construction Loan Maturity Date. On the applicable Final Maturity Date, the Borrower shall pay the entire outstanding amount of the Term Loans.
(b) If any proceeds are received in respect of Performance Liquidated Damages, the Borrower shall prepay the outstanding Loans in accordance with Sections 3.6 and 3.8 of the Depositary Agreement in an amount equal to the Net Disposition Proceeds amount of such saleproceeds; provided, that (i) no prepayment shall be due from proceeds received in respect of any warranty payment to the extent that such repayments proceeds are to be made promptly but in no event more than three applied to repair the item for which such warranty payment was received and (3ii) Business Days following receipt prepayments of such net proceeds, and until the date of payment, such proceeds Eurodollar Loans shall be held in trust for Agentmade on the next Interest Payment Date and prepayments of Prime Rate Loans shall be made on the next Business Day.
(c) On the Conversion Date, the Agent shall calculate any Savings. The foregoing Agent shall not be deemed then apply such Savings pursuant to be implied consent to any such sale otherwise prohibited by Section 3.2 of the terms and conditions hereof. Such repayments Equity Contribution Agreement.
(d) On each Payment Date occurring after the Conversion Date, the Borrower shall prepay the outstanding Loans in accordance with priority Fifth of Section 3.2(b)(ii) of the Depositary Agreement.
(e) All prepayments shall be applied (x) firstfirst to any interest or Fees that are then due on any Loan, next to interest or Fees accrued in respect of the Loans to be prepaid, and then to the outstanding unpaid principal installments of the Term Loan such Loans in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofmaturity.
(f) All proceeds received With respect to each prepayment required to be made pursuant to this Section, the Borrower may designate, by Borrowers written notice to the Agent on or Agent before the date of such prepayment, the Types of Loans which are to be prepaid and, in the case of Eurodollar Loans, the specific Borrowing(s) pursuant to which made, provided that (i) under any insurance policy prepayments of Eurodollar Loans may only be made on account the last day of damage or destruction of any assets or property of any Borrowers, or an Interest Period applicable thereto unless all Prime Rate Loans have been paid in full; and (ii) if any prepayment of Eurodollar Loans made pursuant to a single Borrowing shall reduce the outstanding Loans made pursuant to such Borrowing to an amount less than $1,000,000 such Borrowing shall immediately be con verted into Prime Rate Loans. In the absence of a designation by the Borrower as a result of any taking or condemnation of any assets or property described in the preceding sentence, the Agent shall, subject to the above, make such designation in its sole discretion.
(g) All prepayments made pursuant to Sections 2.12 and 2.13 shall be applied without premium or penalty; provided that the Borrower shall make any payments due under an Interest Rate Protection Agreement in accordance connection with Section 6.6such prepayment or the effects thereof. Following any prepayment, the Borrower shall provide to the Agent a certified copy of Schedule 1.1(C) that is adjusted to reflect such prepayment. Upon approval by the Agent (such approval not to be unreasonably withheld or delayed), such amended Schedule shall be deemed part of this Agreement and shall replace any previously delivered Scheduled 1.1(C).
Appears in 1 contract
Samples: Construction and Term Loan Agreement (Cleco Power LLC)
Mandatory Prepayments. (a) When On each Quarterly Payment Date, beginning with June 29, 2012, and on each Quarterly Payment Date thereafter to and including the Quarterly Payment Date immediately preceding the Maturity Date, Company shall (unless otherwise specified in writing by Administrative Agent) make a principal payment in respect of the Notes in an aggregate amount equal to the Scheduled Quarterly Principal Payment. If any Borrower sells principal or otherwise disposes interest amount payable under the Notes remains outstanding at the Maturity Date, such amount will be paid in full by Company to Lenders in immediately available funds on the Maturity Date. The payments required under this subsection (a) shall be made without Make-Whole Amount. Except with respect to any mandatory payments described in the following subsection (b), Make Whole Amount or Prepayment Premium (as applicable) is required to be paid with all other payments, of principal on the Notes prior to the Maturity Date, any optional prepayments made under Section 2.8, and any payments made following acceleration of the Notes pursuant to Section 8.1.
(b) If the Required Lenders shall, in their discretion, approve the sale or other transfer of any Collateral resulting Oil and Gas Property requested by Company, then (unless otherwise specified in Net Disposition Proceeds such consent) Company shall make a payment in excess respect of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances Notes in an amount equal to the Net Disposition Proceeds sales proceeds received by the Credit Parties from such sale or other transfer, net only of reasonable out-of-pocket costs of such sale, such repayments sale or transfer that are paid to be made promptly but in no event more than three (3) Business Days following receipt non-Affiliates of such net proceeds, Company and until the date of payment, such proceeds shall be held in trust for approved by Administrative Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
payments required under this subsection (b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (made without Make-Whole Amount or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentPrepayment Premium.
(c) Borrowers shall prepay If a Change of Control occurs, Company will give prompt notice thereof to Administrative Agent and Lenders, and Required Lenders will have the outstanding option, as provided below, to require Company to repay all or any part of the Loans in cash in an amount (the “Change of Control Repayment Amount”) equal to 100% of the aggregate unpaid principal amount of the Term Loans in an amount to be repaid plus a prepayment premium equal to twenty-five percent (25%) 2% of Excess Cash Flow for each fiscal year beginning with such aggregate unpaid principal amount plus accrued and unpaid interest to the fiscal year ending December 31, 2022, payable upon delivery date of repayment. Within 60 days following receipt of the financial statements Company’s notice of such Change of Control, Administrative Agent will give written notice to Company as to whether or not Required Lenders are electing to exercise such option on behalf of all Lenders. If Required Lenders elect to exercise such option, or if Administrative Agent referred fails to in and required by Section 9.7 for give written notice of the Required Lenders’ election whether or not to exercise such fiscal year but in any event not later than one hundred twenty option within such 60 day period, Company will pay the Change of Control Repayment Amount to Administrative Agent, on behalf of Lenders, within 15 days after receipt of Administrative Agent’s written notice of exercise (120) or, if Administrative Agent fails to so provide such written notice, within 15 days after the end of each such fiscal year60 day period). If Administrative Agent provides written notice to Company that Required Lenders are electing not to exercise such option, which amount shall be applied to the outstanding principal installments Lenders’ option will terminate (unless and until a later Change of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(cControl occurs), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In If any principal or interest amount payable under the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by BorrowersNotes remains outstanding at the Maturity Date, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, paid in full by Company to Lenders in immediately available funds on the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofMaturity Date.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Mandatory Prepayments. (a) When Subject to Section 4.3 and Section 7.1(b) hereof, when any Borrower Loan Party sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course ordinary course of Business or Dispositions otherwise permitted under Section 7.1business, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceedsNet Proceeds and, and until the date of payment, such proceeds shall be held in trust for AgentAgent (for its benefit and the benefit of the Lenders). The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied .
(xb) first, to the outstanding principal installments of the Term When any Loan in the inverse order of the maturities thereofParty receives any (i) insurance or condemnation proceeds, and (yii) secondproceeds of Indebtedness incurred by any of the Loan Parties other than Indebtedness permitted under Section 7.8, Borrowers shall repay the Advances in an amount equal to the remaining Advances (including cash collateralization Net Proceeds of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuingforegoing, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds and, until the date of payment, such proceeds shall be held in trust for Agent (for its benefit and the benefit of the Lenders). The foregoing shall not be deemed to be implied consent to any such receipt of insurance or condemnation proceeds or incurrence or Indebtedness otherwise prohibited by the terms and conditions hereof.
(c) When any Loan Party receives any funds resulting from additional Equity Interests being issued by any of the Loan Parties or any of their Subsidiaries, Borrowers shall repay the Advances in an amount equal to the Net Proceeds of the foregoing, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such Net Proceeds and, until the date of payment, such proceeds shall be held in trust for Agent (for its benefit and the benefit of the Lenders). The foregoing shall not be deemed to be implied consent to any such issuance of Equity Interests otherwise prohibited by the terms and conditions hereof.
(d) All prepayments required pursuant to this Section 2.20 shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) the Advances in such order as Agent may determine, determine subject to Borrowers’ ' ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (General Finance CORP)
Mandatory Prepayments. (ai) When If at any Borrower sells or otherwise disposes time the outstanding balance of the Revolving Loan exceeds the lesser of (A) the Maximum Amount and (B) the Borrowing Base, Borrowers shall immediately repay the aggregate outstanding Revolving Credit Advances to the extent required to eliminate such excess. If any such excess remains after repayment in full of the aggregate outstanding Revolving Credit Advances, Borrowers shall provide cash collateral for the Letter of Credit Obligations in the manner set forth in Annex B to the extent required to eliminate such excess.
(ii) Immediately upon receipt by any Credit Party of any Collateral resulting in Net Disposition Proceeds in excess cash proceeds of $500,000 in any asset disposition (including condemnation proceeds and the aggregate in proceeds of any fiscal year, insurance claim that are required to be used under Section 5.4(c) to make a prepayment of the Obligations) other than proceeds of sales of Inventory in the Ordinary Course ordinary course of Business or Dispositions otherwise permitted under Section 7.1business, Borrowers shall repay prepay the Advances Loans (and cash collateralize Letter of Credit Obligations) in an amount equal to the Net Disposition Proceeds of all such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net adjustment payments or proceeds, net of (A) commissions and until the date other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by Borrowers in connection therewith (in each case, paid to non-Affiliates), (B) transfer taxes, (C) amounts payable to holders of payment, senior Liens on such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied asset (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereofextent such Liens constitute Permitted Encumbrances hereunder), if any, and (yD) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit an appropriate reserve for income taxes in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, GAAP in connection therewith. Any such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.61.3(c).
(iii) If Parent, any Borrower or any other Credit Party issues Stock or debt securities, no later than the Business Day following the date of receipt of the proceeds thereof, Borrowers shall prepay the Loans (and cash collateralize Letter of Credit Obligations) to the extent of outstanding Loans only in an amount equal to all such proceeds, net of underwriting discounts and commissions and other reasonable costs paid to non-Affiliates in connection therewith. Any such prepayment shall be applied in accordance with Section 1.3(c).
Appears in 1 contract
Samples: Credit Agreement (Drugmax Inc)
Mandatory Prepayments. (a) When In addition to any Borrower sells other or otherwise disposes additional payments and/or prepayments that may be required hereunder or under any of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Loan Documents, Borrowers shall repay prepay the Advances Principal Debt within two Business Days following the issuance of any equity securities (other than pursuant to options heretofore granted to any employee or director of GAINSCO or any of the Subsidiaries and other than equity securities issued to GAINSCO or a Subsidiary) and the receipt of Available Proceeds therefrom by GAINSCO or any Subsidiary after March 23, 2001 or the sale or other disposition by GAINSCO or any Subsidiary (other than an Insurance Subsidiary) of any of its assets in an amount equal to 50% of the Net Disposition Available Proceeds of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent attributable to any such sale otherwise prohibited by the terms and conditions hereofissuance or disposition, as applicable. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with Borrowers shall not be required to prepay the Principal Debt in respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as dispositions (i) Borrowers have sufficient Undrawn Availability (after giving effect of Investments by GAINSCO and its Subsidiaries in the ordinary course of business to the release of extent that the reserve for such amount) to cause such Revolving Advances to be madeproceeds thereof are reinvested in Investments retained by the Company that owned the Investment so disposed of, (ii) all conditions of obsolete equipment in the ordinary course of business to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and the extent that the proceeds thereof are used to purchase replacement items within 90 days, (iii) Borrowers agree of other items to use the proceeds extent that the aggregate Available Proceeds therefrom do not exceed $250,000 in any calendar year, or (iv) to GMSP of the Revolving Advances Property Subject to pay GMSP Put. Additionally, the cost of such cost of reinvestment. The foregoing following shall not be deemed considered to be implied consent to sales or dispositions of assets by GAINSCO or any Disposition or other transaction prohibited by the terms and conditions Subsidiary for purposes of this Agreement Section 2.5(d): (v) the conversion to cash of portfolio securities, issued by a Person other than any of the Companies, by GAINSCO or any Other Document.
Subsidiary, (cw) Borrowers shall prepay the outstanding amount declaration, making and/or payment of the Term Loans in an amount equal dividends by any Subsidiary to twenty-five percent GAINSCO (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements whether made directly to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than GAINSCO or through one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(cor more Subsidiaries), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) firsttransfers of cash between and among GAINSCO and the Subsidiaries that are not Insurance Subsidiaries, made in the ordinary course of business of both the transferee and the transferor, (y) transfers of cash between and among GAINSCO and the Subsidiaries (including the Insurance Subsidiaries), made in the ordinary course of business of both the transferee and the transferor, to the outstanding principal installments extent that such transfer consists solely of the Term Loan distribution to an Insurance Subsidiary of insurance premiums and/or commissions attributable to insurance premiums previously remitted to the transferor by, or for the account of, the applicable insurance policyholder(s), or (z) transfers of cash between and among GAINSCO and the Subsidiaries (including the Insurance Subsidiaries), made in the inverse order ordinary course of business of both the maturities thereof transferee and (y) secondthe transferor, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however extent that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance transfer consists solely of the Term Loan exceeds payment by the Term Loan Collateral Amount at transferor of payroll amounts or other costs and expenses attributable to Insurance Subsidiaries and the time of amounts thereof, in the aggregate, have previously been funded, or will substantially contemporaneously with such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall transfer be applied reimbursed to the Revolving Advances. If Agent orders an appraisal of transferor, by the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(bapplicable Insurance Subsidiary(ies), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6."
Appears in 1 contract
Mandatory Prepayments. (ai) When any If Borrower sells any of the Equipment, or if any of the Collateral is taken by condemnation, Borrower shall pay to Agent, for the account of Lenders, unless otherwise disposes agreed by Lenders, as and when received by Borrower and as a mandatory prepayment, of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal yearTerm Loan, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount a sum equal to the Net Disposition Proceeds net cash proceeds received by Borrower from such sale or condemnation; PROVIDED, HOWEVER, so long as no Default or Event of such saleDefault exists, such repayments Borrower shall not be obligated to be made promptly but pay over either (x) the first $100,000 in no event more than three proceeds received during any fiscal year of Borrower or (3y) Business Days following receipt of such net proceeds, any proceeds received which are reinvested in replacement Equipment pursuant to SECTION 7.4 hereof as a prepayment on the Term Loan (and until the date of payment, such proceeds shall in that event be held in trust for Agentapplied to the Revolving Credit Loans). The foregoing shall not be deemed to be implied consent to any Each such sale otherwise prohibited by the terms and conditions hereof. Such repayments prepayment shall be applied (x) first, to the outstanding principal installments of principal due under the Term Loan in the inverse order of the their maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit until payment thereof in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereoffull.
(bii) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful In addition to the business mandatory prepayments set forth above, Borrower shall pay to Agent, for the account of the Loan Parties and their SubsidiariesLenders, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount mandatory prepayment of the Term Loans in Loan an amount equal to twenty-five percent (25%) of Borrower's Excess Cash Flow for with respect to each fiscal year of Borrower, beginning with the fiscal year of Borrower ending on December 31, 2022, payable upon 1997. Such prepayments shall be made within ten (10) Business Days following the delivery by Borrower to Agent and Lenders of the annual financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120SECTION 9.1(J)(I) days after the end of hereof and each such fiscal year, which amount prepayment shall be applied to the outstanding principal installments of principal due under the Term Loan in the inverse order of the their maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statementsuntil payment thereof in full.
(diii) In addition to the event mandatory prepayments set forth above, immediately upon the consummation by Borrower of any issuance or other incurrence an Initial Public Offering, Borrower shall pay to Agent, for the account of Indebtedness (other than Permitted Indebtedness) Lenders, as and when received by BorrowersBorrower, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent the lesser of (100.00%i) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal amount of the Term Loan or (ii) the net proceeds from such Initial Public Offering, such payment to be a mandatory prepayment on the Term Loan. Each such prepayment shall be applied to the installments of and principal due under the Term Loan in the inverse order of the their maturities until payment thereof and (y) second, in full. In addition to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b)foregoing, provided however that if no Default or Event of Default has occurred and is continuing, such repayments Borrower shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of immediately prepay the Term Loan in full if a Change in Control occurs as the inverse order result of the maturities thereof until the outstanding balance consummation of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofan Initial Public Offering.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Samples: Loan and Security Agreement (Brazos Sportswear Inc /De/)
Mandatory Prepayments. (ai) When Immediately upon the receipt by any Borrower sells or otherwise disposes of the proceeds of any Collateral resulting in Net Disposition Proceeds in excess voluntary or involuntary sale or disposition by any Credit Party of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business property or Dispositions otherwise permitted under Section 7.1assets (including casualty losses or condemnations but excluding sales or dispositions which qualify as Permitted Dispositions) (“Borrower Asset Sales”), Borrowers shall repay prepay the Advances outstanding principal amount of the Obligations (including, without limitation, any fees pursuant to Section 3(c) due and payable on the amount so prepaid) in an amount equal to 100% of the Net Disposition Cash Proceeds (including condemnation awards and payments in lieu thereof) received by such Person in connection with such Borrower Asset Sale; provided that, solely in respect of any Borrower Asset Sales, so long as (A) no Default shall have occurred and is continuing, (B) Borrower’s Agent shall have given Agent prior written notice of Borrowers’ intention to apply such monies to the costs of replacement of the properties or assets that are the subject of such salesale or disposition, (C) the monies are held in a cash collateral account in which Agent, for the benefit of the Agent and the Lenders has a perfected first priority security interest, and (D) Borrowers complete such repayments to be made promptly but in no event more than three (3) Business Days following replacement, purchase, or construction within 90 days after the initial receipt of such net proceedsmonies, Borrowers shall have the option to apply such monies to the costs of replacement of the property or assets that are the subject of such sale or disposition unless and until to the extent that such applicable period shall have expired without such replacement, purchase or construction being made or completed, in which case, any amounts remaining in the cash collateral account shall be paid to Agent for application against the Obligations. Nothing contained in this Section 2(c)(i) shall permit any Borrower to sell or otherwise dispose of any property or assets other than in accordance with the terms and conditions of this Agreement.
(ii) Immediately upon the receipt by any Borrower of any Extraordinary Receipts, Borrowers shall prepay the outstanding principal amount of the Obligations (including, without limitation, any fees pursuant to Section 3(c) due and payable on the amount so prepaid) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such Extraordinary Receipts.
(iii) Immediately upon the issuance or incurrence by any Borrower of any Indebtedness (other than Indebtedness permitted hereunder) or the issuance by any Borrower of any shares of such Borrower’s Stock (excluding sales of Stock of the Parent pursuant to warrants or options in existence as of the date hereof) Borrowers shall prepay the outstanding principal amount of paymentthe Obligations (including, without limitation, any fees pursuant to Section 3(c) due and payable on the amount so prepaid) in an amount equal to 100% of the Net Cash Proceeds received by such proceeds shall be held Person in trust for Agentconnection with such issuance or incurrence. The foregoing provisions of this Section 2(c)(iii) shall not be deemed to be implied consent to any such sale issuance or incurrence otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentAgreement.
(civ) No later than two (2) Business Days following the receipt by any Borrower of any BT Receivable Payment, Borrowers shall prepay the outstanding principal amount of the Term Loans Obligations in an amount equal to twentysixty-five six percent (2566%) of Excess Cash Flow the BT Receivable Payment received by such Person. A payment hereunder shall not constitute a prepayment for each fiscal year beginning with purposes of any fees payable under Item 5 of the fiscal year ending Addendum.
(v) Within ten (10) days following delivery to Agent and the Lenders of Borrowers’ monthly financial statements pursuant to Section 9(a) for the month ended December 31, 20222009 or, payable upon delivery of the if such financial statements are not delivered to Agent referred and the Lenders on the date such statements are required to in and required by be delivered pursuant to Section 9.7 for such fiscal year but in any event not later than one hundred twenty 9(a), ten (12010) days after the end of each date such fiscal yearstatements are required to be delivered to Agent and the Lenders pursuant to Section 9(a), which amount Borrowers shall be applied to prepay the outstanding principal installments amount of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances Obligations in an amount equal to one hundred percent (100.00%50% of the Excess Cash Flow of the Borrowers for fiscal year 2009. If the information in the Borrowers’ audited financial statements delivered pursuant to Section 9(a) for fiscal year 2009 proves to be incorrect such that the Borrowers have overpaid the Excess Cash Flow payment referred to herein, then the Agent shall credit such overpayment to any interest then due and payable, if any, or the Borrowers’ next scheduled payment of interest if no interest is then due and payable. If the information in the Borrowers’ audited financial statements delivered pursuant to Section 9(a) for fiscal year 2009 proves to be incorrect such that the Borrowers have underpaid the Excess Cash Flow payment referred to herein, then the amount of such underpayment shall be immediately due and payable in cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating Agent for application to any outstanding Letters Obligations. A payment hereunder shall not constitute a prepayment for purposes of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance fees payable under Item 5 of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereofAddendum.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Capital Growth Systems Inc /Fl/)
Mandatory Prepayments. (a) When any Borrower sells or otherwise disposes of any Collateral resulting other than (i) Inventory in Net Disposition Proceeds the ordinary course of business and (ii) sales or other dispositions of Equipment having an individual fair market value not in excess of Ten Thousand Dollars ($500,000 in the 10,000) and an aggregate fair market value not to exceed One Hundred Thousand Dollars ($100,000) in any fiscal year, other than Inventory in one Fiscal Year (the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1foregoing called herein "De Minimis Sales"), Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds net proceeds of such sale, i.e., gross proceeds less the reasonable costs of such sales or other dispositions, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for AgentLender. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) firstapplied, if derived from other than the sale of Inventory or Receivables, first to the outstanding principal installments Term Loan, in the reverse order of the respective installment maturities thereof (beginning with the last payment) until the Term Loan is paid in the inverse full, but otherwise all such proceeds shall be applied to Revolving Advances in such order of the maturities thereofas Lender may determine, and (y) secondwithout reduction, however, in Borrowers' ability to the remaining reborrow Revolving Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b)terms hereof. Notwithstanding the foregoing, provided however that if no unless and until a Default or Event of Default has occurred and is continuing, Borrower may sell or otherwise dispose of Collateral (in addition to Inventory in the ordinary course of business and De Minimis Sales) not to exceed, in aggregate fair market value, the Materiality Threshold in the aggregate, in any Fiscal Year and retain such repayments net proceeds solely to acquire replacement Collateral without making a mandatory prepayment hereunder so long as (A) the fair market value of the acquired Collateral is equal to or greater than the fair market value of the Collateral which was sold, (B) the acquired Collateral is purchased by such Borrower within ninety (90) days before or after the date of the sale of the Collateral, (C) the proceeds of such sale are remitted to Lender to be held by Lender as security for the payment of the Obligations until the replacement Collateral is acquired, (D) the acquired Collateral shall be applied deemed to cash collateralize any Obligations related be acceptable Collateral by Lender in its sole discretion and (E) the acquired Collateral shall be subject to outstanding Letters of Credit last) in such order as Agent may determineLender's first priority security interest created hereunder, subject only to Borrowers’ ability Permitted Encumbrances. If any Borrower fails to re-borrow Revolving meet any of the conditions set forth above, such Borrower hereby authorizes Lender to apply the proceeds held by Lender as a prepayment of the Advances in accordance with the terms hereofmanner set forth above.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans Loan in an amount equal to twenty-five fifty percent (2550%) of Excess Cash Flow )(as hereinafter defined) as follows: (i) for each fiscal year beginning with the fiscal year Borrowers' Fiscal Year ending December 31, 20222003, no prepayment shall be required; (ii) for Borrowers' Fiscal Year ending December 31, 2004, an annual prepayment shall be required, payable upon delivery of the financial statements to Agent Lender referred to in and required by Section 9.7 10.7 for such fiscal year Fiscal Year but in any event not later than one hundred twenty ninety (12090) days after the end of each such fiscal yearFiscal Year, which based on Borrowers' Excess Cash Flow for such Fiscal Year; and (iii) beginning with the Fiscal Year of Borrowers ending December 31, 2005, and continuing thereafter, a semi-annual prepayment shall be required, payable (A) upon delivery of the financial statements to Lender referred to and required by Section 10.8 for the Fiscal Quarter ending June 30, of each such Fiscal Year, but in any event not later than forty-five (45) days after each June 30, based on Borrowers' Excess Cash Flow for the six (6) Fiscal Months then ended, and (B) upon delivery of the financial statements to Lender referred to and required by Section 10.7 for the Fiscal Year then ended, but in any event not later than ninety (90) days after the end of such Fiscal Year, based on Borrowers' Excess Cash Flow for such Fiscal Year, provided that the amount of any prepayment theretofore made based on Excess Cash Flow for the six (6) Fiscal Months previously ended shall be deducted from the amount of such prepayment based on Borrowers' Excess Cash Flow for the entire Fiscal Year. Such delivery of payment is to be accompanied by the Excess Cash Flow Certificate attached hereto as Exhibit 2.13(b). This prepayment shall be made without premium or penalty. This payment of Excess Cash Flow shall be applied to the outstanding principal installments of the Term Loan in the inverse reverse order of the respective installment maturities thereofthereof (beginning with the last payment). In the event that the aforesaid financial statements are statement is not so delivered, then a calculation based upon estimated amounts shall be made by Agent Lender upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c)Section, subject to adjustment when the financial statements are statement is delivered to Agent Lender as required hereby. The calculation made by Agent Lender shall not be deemed a waiver of any rights Agent Lender has or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowersstatement. "Excess Cash Flow," as used herein, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in shall mean an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers to: (i) contemplated by Section 6.5(dEBITDA, as defined in Article VIII, minus the sum of (a) Unfinanced Capital Expenditures, as defined in Article VIII, and Fixed Charges, as defined in Article VIII; in each case, for each covered Fiscal Year (or portion thereof, as appropriate), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Samples: Credit and Security Agreement (Omni Energy Services Corp)
Mandatory Prepayments. (a) When Subject to Section 4.3 hereof, when any Borrower either (i) sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, (other than Inventory sales or other dispositions referred to in clauses (i), (ii), (iv), (vi), (vii), (viii) and (ix) of Section 7.1(b)) or (ii) receives the Ordinary Course proceeds of Business or Dispositions otherwise permitted under Section 7.1payment in respect of any property or casualty insurance claims or any condemnation proceedings with respect to any Collateral (a “Recovery Event”), and receives net cash proceeds as the result of such sale, disposal or Recovery Event, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds net proceeds of such sale, disposition or Recovery Event (i.e., gross cash ChangePro Comparison of ABL and PNC - Exhibit A to Third Amendment 10/3/2016 proceeds less the reasonable costs of such sales or other dispositions or of collecting on or settling such insurance claim or condemnation proceeding), such repayments to be made promptly but in no event more than three five (35) Business Days following receipt of such net cash proceeds, and until the date of payment, such proceeds shall be held in trust for Agent; provided that, notwithstanding anything to the contrary provided for in the foregoing or otherwise in this Agreement, Borrowers shall make such a repayment of the Advances in an amount equal to the net cash proceeds of each and every sale or disposition of, or receipt by any Borrower of the proceeds of, or payment in respect of any property or casualty insurance claims or any condemnation proceedings with respect to, any ABL Equipment. The foregoing shall not be deemed to be implied consent to any such sale or disposition otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of remaining Revolving Advances in such order as Agent may determine, subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the Term Loan in the inverse order of the maturities thereofterms hereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Keane Group, Inc.)
Mandatory Prepayments. (a) When If, subsequent to the Closing Date, the Borrower or any Borrower sells of its Subsidiaries shall issue and sell any Capital Stock or otherwise disposes of incur any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, Indebtedness other than Inventory in the Ordinary Course pursuant to a Permitted Issuance, 100% of Business or Dispositions otherwise permitted under Section 7.1, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds thereof shall be applied on each date of such sale, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds toward the prepayment of the Loans as set forth in subsection 2.5(d). 23 19
(b) If, subsequent to the Closing Date, the Borrower or any of its Restricted Subsidiaries shall receive Net Proceeds from any Asset Sale, including, without limitation, insurance and condemnation proceeds, and until the date 100% of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments Net Proceeds shall be applied on each date of receipt of such proceeds toward the prepayment of the Loans as set forth in subsection 2.5(d).
(xc) firstIf for any fiscal quarter, commencing with the fiscal quarter following the fiscal quarter in which the Closing Date occurs, there shall be Excess Cash Flow for such fiscal quarter, 100% of such Excess Cash Flow shall be applied toward prepayment of the Loans as set forth in subsection 2.5(d). Each such prepayment shall be made on or before the forty-fifth day following the last day of such fiscal quarter.
(d) Subject to the third succeeding sentence, prepayments made pursuant to this subsection 2.5 shall be applied by the Borrower to the prepayment of the Loans pro rata according to the outstanding principal amounts thereof held by the respective Lenders. Prepayments of the Loans pursuant to this subsection 2.5 shall be applied to the remaining installments of the Term each Loan in the inverse order of their scheduled maturities. Amounts prepaid on account of the maturities thereof, and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall Loans may not be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with reborrowed. With respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (subsection 2.4 or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness subsection 2.5 (other than Permitted Indebtedness) a prepayment in full of the Loans), at any time prior to the date of such prepayment, any holder of Loans may notify the Borrower and the Administrative Agent that such holder of Loans elects not to have such prepayment applied to such Loans pursuant to this subsection 2.5(d). Any such notice given by Borrowers, Borrowers shall, no later than any such holder of Loans shall become effective on the date three (3) Business Days after the receipt date received by Borrowers the Borrower and the Administrative Agent and shall remain in effect until the date three Business Days after the date on which the Borrower and the Administrative Agent receive a notice of the cash proceeds revocation from any such issuance or incurrence of Indebtednessholder; provided, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds however, in the case of a mandatory prepayment pursuant to this subsection 2.5, a holder of Loans which elects not to have such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be prepayment applied to cash collateralize any Obligations related to outstanding Letters such Loans may notify the Borrower and the Administrative Agent of Credit last) such election and in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to event shall immediately return any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds moneys it has received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction such mandatory prepayment to the Administrative Agent, which moneys (and any moneys which such holder would be entitled to but had not yet received on account of any assets or property of any Borrowers, or (iisuch mandatory prepayment had it not made such an election) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6the immediately succeeding sentence. If any such holder of a Loan shall have so elected not to have prepayments applied to such Loan, the amount of such prepayment which would have been applied to such Loan shall be instead applied to the Loans held by any holder which has not made an election pursuant to this subsection 2.5(d), pro rata in accordance with the principal amounts held by such holders.
(e) The Borrower shall give the Administrative Agent (which shall promptly notify each Lender) at least one Business Day's notice of each prepayment pursuant to this subsection 2.5 setting forth the date and amount thereof.
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Mandatory Prepayments. (a) When The Companies shall upon receipt, promptly pay to CIT any Borrower sells or otherwise disposes Asset Sale Proceeds and Insurance Proceeds, and shall promptly pay fifty percent (50%) of any Collateral resulting in Net Disposition Proceeds in excess Excess Cash Flow amounts to CIT within 90 days of $500,000 in the aggregate in any Companies’ fiscal year-end; and
(b) All Asset Sale Proceeds, other than Inventory in the Ordinary Course of Business Insurance Proceeds and Excess Cash Flow amounts received by CIT will be applied, without penalty or Dispositions otherwise permitted under Section 7.1premium (except for breakage costs, Borrowers shall repay the Advances in an amount equal to the Net Disposition Proceeds of such saleif any), such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan to remaining schedule amortization payments with such proceeds being applied in the inverse reverse order of the maturities thereof, maturity; and (y) second, to outstanding advances under the remaining Advances Revolving Line of Credit.
L. The Exhibits and Annexes to the Financing Agreement are hereby amended to conform the references therein due to the amendments in the Seventeenth Amendment.
M. Deleting Exhibit A to the Financing Agreement and replacing it with Exhibit A attached hereto.
N. Modifying Annex A to the Financing Agreement as follows:
(including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit lasti) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereofSections (g)(i)(1,4,5) are hereby deleted.
(bii) Notwithstanding Section (g)(i)(2) is amended by deleting the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under number “30th” and inserting “45th” in lieu thereof.
(iii) Section 2.20(a), so long as no Event of Default shall have occurred (g)(i)(3) is amended by deleting the number “15th” and be continuing inserting “45th” in lieu thereof.
(iv) Section (g)(ii)(3) is amended by deleting the entire section and inserting the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds sentence in lieu thereof: “Each Electronic Transmission must contain the name and title of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion officer of such Net Disposition Proceeds the Companies transmitting the Electronic Transmission.” And
(v) The amended Annex A is hereby renumbered in fixed or capital assets or other assets useful the appropriate numerical order.
O. Modifying the Financing Agreement so that Manhattan and MTE, upon the dissolution of MTE, shall no longer be a party to the business Loan Documents and modifying the Loan Documents automatically delete any reference to Manhattan and MTE, and conforming all other provisions of the Loan Parties Documents to reflect such deletion and their Subsidiariesmodifying the language, then such Net Disposition Proceeds shall be applied by Agent forms and agreements in the Loan Documents as the context requires to reflect Manhattan and MTE no longer being a party to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be made, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other DocumentLoan Documents.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
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Mandatory Prepayments. (a) When Subject to the provisions of paragraph (e) below, following any issuance of debt obligations of the Borrower sells or otherwise disposes any of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, its Subsidiaries (other than Inventory in Indebtedness of the Ordinary Course Borrower or any of Business its Subsidiaries permitted to be issued under subsection 8.2) or Dispositions otherwise permitted under Section 7.1any issuance of Convertible Subordinated Debt or High Yield Subordinated Debt by Parent (other than to the extent such issuance is refinancing Existing Convertible Subordinated Debt, Borrowers shall repay Convertible Subordinated Debt or High Yield Subordinated Debt which is outstanding at the Advances in time), an amount equal to 75% of the Net Disposition Proceeds net proceeds of such saledebt issuance shall be applied by the Borrower to the prepayment of the Loans as set forth in paragraph (d) below.
(b) Subject to the provisions of paragraph (e) below, such repayments to be made promptly but following the consummation of any Asset Sale by the Borrower or any of its Subsidiaries, in no event more than three (3) Business Days the case of cash proceeds, and following receipt of cash proceeds representing payments under notes or other securities received in connection with any non-cash consideration obtained in connection with such Asset Sale, if the Asset Sale Prepayment Trigger is met, an amount equal to 75% of the Net Proceeds of the Asset Sale Prepayment Amount shall be applied by the Borrower to the prepayment of the Loans as set forth in paragraph (d) below.
(c) Subject to the provisions of paragraph (e) below, following any issuance of equity by Parent or the Borrower (without duplication), an amount equal to 50% of the net proceedscash proceeds of such equity issuance shall be applied by the Borrower to the prepayment of the Loans as set forth in paragraph (d) below. Equity issuances by Parent or the Borrower pursuant to employee, officer or director benefit plans or agreements ("EMPLOYEE ISSUANCES") or as consideration for any Permitted Acquisition shall not be subject to the provisions of this paragraph (c).
(i) Amounts to be applied in connection with prepayments made pursuant to paragraph (a) or (b) above shall be applied, FIRST, to the ratable prepayment of the Term Loans (in the manner set forth in clause (ii) of this paragraph (d)) and until SECOND, to the prepayment of Revolving Credit Loans then outstanding (without any accompanying reduction of the Revolving Credit Commitments). Amounts to be applied in connection with prepayments made pursuant to paragraph (c) above shall be applied, FIRST, to the ratable prepayment of the Term Loan installments scheduled to be paid during the next twelve months after the date of paymentsuch prepayment, in the order that such proceeds shall be held in trust for Agent. The foregoing shall not be deemed installments are scheduled to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) firstpaid; SECOND, to the prepayment of Revolving Credit Loans then outstanding principal (without any accompanying reduction of the Revolving Credit Commitments); and THIRD, to the prepayment of the remaining installments of the Term Loan Loans on a PRO RATA basis.
(ii) Partial prepayments of the Term Loans pursuant to subsection 4.5 or 4.6 (other than prepayments made pursuant to paragraph (c) of subsection 4.6) shall be applied FIRST, to the installments thereof scheduled to be paid during the next twelve months after the date of such prepayment, in the inverse order of the maturities thereofthat such installments are scheduled to be paid, and (y) secondSECOND, to the remaining Advances installments on a PRO RATA basis.
(including i) Immediately upon receipt by the Borrower or any of its Subsidiaries of any cash collateralization of all Obligations proceeds relating to any transaction described in paragraph (a), (b) or (c) above that are expected to give rise to a prepayment required by said paragraph, the Borrower shall apply such cash proceeds (less the aggregate amount of any reasonable underwriter's commissions and discounts, placement agency fees and expenses, financial advisory fees and expenses, brokers fees, accounting and legal fees and expenses, and other fees and expenses, in each case relating to, and payable at the closing of, the transaction or transactions resulting in such cash proceeds ("CLOSING TRANSACTION FEES")) to prepay the Revolving Credit Loans (or to the extent there are no Revolving Credit Loans outstanding Letters or the Borrower would not, as determined by the Borrower in good faith, be permitted to reborrow Revolving Credit Loans as contemplated in this subsection 4.6(e)), such cash proceeds (less Closing Transaction Fees) shall be delivered to the Administrative Agent to be held by it on behalf of the Lenders until the calculations required to be made pursuant to clause (ii) hereof have been reported to the Administrative Agent) and any such prepaid amounts may not be reborrowed until the calculations required to be made pursuant to clause (ii) hereof have been reported to the Administrative Agent.
(ii) Within five days following the receipt by the Borrower or any of its Subsidiaries of such cash proceeds, the Borrower shall calculate the anticipated net proceeds of any debt or equity issuance or the anticipated amount of Net Proceeds of any Asset Sale and shall report such calculation to the Administrative Agent.
(iii) Within 30 days following the receipt by the Borrower or any of its Subsidiaries of such cash proceeds, the Borrower shall apply an amount equal to 75% of the net proceeds of any debt issuance required to be used to make a prepayment, 75% of the Net Proceeds of an Asset Sale required to be used to make a prepayment or 50% of the net proceeds of any equity issuance required to be used to make a prepayment, to prepay the Loans and, to the extent required, the Revolving Credit Loans in the applicable order set forth in paragraph (d) above and the Administrative Agent shall remit to the Borrower the remainder, if any, of any funds delivered to the Administrative Agent pursuant to clause (i) of this subsection 4.6(e) therefor. For purposes of this subsection 4.6, the net proceeds of any transaction (other than an Asset Sale) giving rise to a required prepayment shall be determined in accordance with the provisions definition of Section 3.2(b"Net Proceeds" in subsection 1.1, with appropriate changes.
(f) Upon receipt by the Administrative Agent of the amounts required to be paid pursuant to clause (i) of paragraph (e) above from any Asset Sale consisting of the sale of all of the shares of capital stock of any Subsidiary Guarantor (or, upon receipt by the Borrower or its Subsidiaries of such amounts as are permitted to be retained in accordance with clause (b) of this subsection 4.6), provided however that (1) the obligations of such Subsidiary Guarantor under its Guarantee shall automatically be discharged and released without any further action by the Agents or any Lender, and (2) the Agents and the Lenders will, upon the request of the Borrower, execute and deliver any instrument or other document in a form acceptable to the Administrative Agent which may reasonably be required to evidence such discharge and release.
(g) Upon receipt by the Administrative Agent of the amounts required to be paid pursuant to clause (i) of paragraph (e) above from any Asset Sale consisting of the sale of shares of capital stock of any Subsidiary Guarantor or any Subsidiary of the Borrower (or, upon receipt by the Borrower or its Subsidiaries of such amounts as are permitted to be retained in accordance with clause (c) of this subsection 4.6), (1) the Administrative Agent shall release to the Borrower, without representation, warranty or recourse, express or implied, those of such shares of capital stock of such Subsidiary Guarantor or Subsidiary held by it as Pledged Equity Interests (as defined in the Borrower Pledge Agreement) and (2) the Agents and the Lenders will, upon the request of the Borrower, execute and deliver any instrument or other document in a form acceptable to the Administrative Agent which may reasonably be required to evidence such release.
(h) The Borrower shall give the Administrative Agent (which shall promptly notify each Lender) at least one Business Day's notice of each prepayment pursuant to subsection 4.5 setting forth the date and amount thereof. Prepayments of Eurodollar Loans pursuant to this subsection 4.6, if not on the last day of the Interest Period with respect thereto, shall, at the Borrower's option, as long as no Default or Event of Default has occurred and is continuing, be prepaid subject to the provisions of subsection 4.21 or such repayments prepayment (after application to any ABR Loans, in the case of prepayments by the Borrower) shall be deposited with the Administrative Agent as cash collateral for such Eurodollar Loans on terms reasonably satisfactory to the Administrative Agent and thereafter shall be applied to cash collateralize any Obligations related the prepayment of the Eurodollar Loans on the last day of the respective Interest Periods for such Eurodollar Loans next ending most closely to outstanding Letters the date of Credit last) in receipt of such order as Agent may determineNet Proceeds. After such application, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to unless a prepayment under Section 2.20(a), so long as no Default or an Event of Default shall have occurred and be continuing and the Borrowing Agent continuing, any remaining interest earned on such cash collateral shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful be paid to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to Borrower.
(i) Upon the Revolving Advances and Agent shall implement a reserve equal Credit Termination Date the Borrower shall, with respect to each then outstanding Letter of Credit, if any, either (i) cause such Letter of Credit to be cancelled without such Letter of Credit being drawn upon or (ii) collateralize the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve L/C Obligations with respect to such amount shall be released and shall be available Letter of Credit with a letter of credit issued by banks or a bank satisfactory to Borrowers as the Administrative Agent on terms satisfactory to the Administrative Agent.
(j) Upon consummation by the Borrower or any Subsidiary of a Revolving AdvancePermitted Interest Transfer, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect the Administrative Agent shall release to the release Borrower, without representation, warranty or recourse, those shares of capital stock or other equity interests of the reserve for Subsidiary that are the subject of such amountPermitted Interest Transfer as permitted in clauses (1) and (2) of subsection 4.6(g) and shall release any Pledged Note theretofore pledged to cause the extent such Revolving Advances to be madePledged Note is being discharged in connection with such Permitted Interest Transfer, and (ii) all conditions to funding sent forth if such Subsidiary whose shares are the subject of such Permitted Interest Transfer is a Subsidiary Guarantor, the obligations of such Subsidiary under its Subsidiary Guarantee shall automatically be discharged and released as provided in Section 8.2 or 8.3 clauses (as applicable1) and (2) of this Agreement have been satisfied and (iiisubsection 4.6(f) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Documentabove.
(ck) Borrowers Notwithstanding any provision to the contrary contained in this Agreement, the proceeds from any Permitted Receivables Securitization shall prepay the outstanding amount of the Term Loans in an amount equal not have to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the prepay any Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by or any Revolving Credit Loans under this Section 2.20(c), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements4.6.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
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Mandatory Prepayments. (a) When Subject to paragraph (i) below, upon receipt by any Borrower sells Group Member of Net Cash Proceeds the Borrowers shall immediately prepay the Loans (or provide cash collateral in respect of Letters of Credit if so required under either of paragraphs (f) or (g) below) in an amount equal to 100% of such Net Cash Proceeds. Any such mandatory prepayment shall be applied in accordance with paragraph (f) of this Section 2.9.
(b) Subject to paragraph (i) below, the Borrowers shall prepay the Term Loans only, within three Business Days after the date the Financial Statements are required to be delivered to the Administrative Agents under Section 6.1(c) (ANNUAL REPORTS), in an amount equal to 50% of Excess Cash Flow for such Fiscal Year (or, in the case of Fiscal Year ending December 31, 2002, the period beginning on the Closing Date and ending on the last day of such Fiscal Year). Any such mandatory prepayment shall be applied in accordance with paragraph (f) of this Section 2.9.
(c) Subject to paragraph (i) below, upon receipt by any Group Member of proceeds (net of associated costs and expenses) of any Property Loss Event or any other insurance claim which when aggregated with other Property Loss Events or other insurance claims for all Group Members in the same Fiscal Year exceeds $3,000,000 in aggregate, the Borrowers shall immediately prepay the Loans (or provide cash collateral in respect of Letters of Credit if so required under either of paragraphs (f) or (g) below) in an amount equal to 100% of such proceeds to the extent not used to reinstate, replace, repair or otherwise disposes invest in assets in respect of any Collateral resulting which such proceeds were received or to meet a liability in Net Disposition Proceeds respect of which such proceeds were received, in excess of $500,000 in the aggregate each case as soon as practicable (but in any fiscal yearevent either used within 180 days after receipt, other than Inventory or contractually committed for investment within such 180 day period and then used within 180 days thereafter). Any proceeds not immediately applied in prepayment and/or provision of cash collateral shall be paid to the Ordinary Course relevant Administrative Agent to be held in a Cash Collateral Account pending application in accordance with this paragraph (c) or, at the request of Business or Dispositions otherwise permitted under Section 7.1the applicable Obligors' Agent, Borrowers a reserve (a "MANDATORY PREPAYMENT RESERVE") shall repay the Advances be established in an amount equal to the Net Disposition Proceeds lesser of such sale, such repayments to be made promptly but in no event more than three (3i) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, Outstanding and (yii) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.
(b) Notwithstanding the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant proceeds not so applied in prepayment and/or provision of cash collateral, following which the applicable Group Member shall be permitted to retain such proceeds. Any such proceeds held in a Cash Collateral Account pending application in accordance with this paragraph (c) which are not so applied within 180 days after receipt or so committed to be applied within that period and applied within 180 days thereafter, shall be applied in accordance with paragraph (f) of this Section 2.1(a)(y)(vi2.9. Any such Mandatory Prepayment Reserve so established shall continue in effect until the application of such proceeds in accordance with this paragraph (c). Borrowers may request Revolving Advances ; PROVIDED that any such proceeds which are not so applied within 180 days after receipt or so committed to be applied within that period and applied within 180 days thereafter shall be applied in accordance with paragraph (f) of this Section 2.9, after which the amount Mandatory Prepayment Reserve shall be eliminated.
(d) On the date which is one year after the Closing Date the Foreign Borrower Sublimit for each of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment Japanese Borrower and the reserve Hong Kong Borrower shall reduce to $0, at which time the Japanese Borrower and the Hong Kong Borrower shall prepay their respective Foreign Revolving Loans, following which the Foreign Administrative Agent shall, in its reasonable discretion, reevaluate the Foreign Borrower Sublimits for each of the Japanese Borrower and the Hong Kong Borrower with respect to a view of increasing such amount shall be released and shall be available to Foreign Borrower Sublimits above $0.
(e) Upon the occurrence of a Change of Control, the Borrowers as a Revolving Advance, so long as shall: (i) Borrowers have sufficient Undrawn Availability immediately prepay all Loans (after giving effect to and provide cash collateral in respect of any Letter of Credit Obligations), accrued interest thereon and all other sums payable under this Agreement and the release of the reserve for such amount) to cause such Revolving Advances to be made, other Loan Documents and (ii) all conditions the unutilized elements of the Revolving Credit Facilities shall be cancelled and the Revolving Credit Commitment of each Lender shall be reduced to funding sent forth in Section 8.2 or 8.3 zero.
(as applicablef) Prepayments to be made pursuant to paragraphs (a) through (d) of this Agreement have been satisfied and Section 2.9 shall be applied, FIRST, (iiiA) Borrowers agree to use in the proceeds case of the Revolving Advances first 50% of the amount applied in prepayment, to pay reduce the cost remaining installments of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding principal amount of the Term Loans in the order of maturity and (B) in the case of the second 50% of the amount applied in prepayment, in repayment of the remaining installments of such outstanding principal amount of the Term Loans in inverse order of maturity, until the Term Loan Facility has been reduced to zero, SECOND, in prepayment of Revolving Loans and PRO RATA as between the Revolving Credit Facilities, and THIRD, in the event the amount of the Letter of Credit Obligations exceeds the Available Credit, providing cash collateral in the amount of 105% of such excess; PROVIDED, HOWEVER that in the case of prepayments under paragraph (a) of this Section 2.9, (x) an amount equal to twenty-five percent the lesser of $9,000,000 and the proceeds of any sale or disposition of a Material Property (25%other than the Xxxxxxx Property) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied in prepayment, firstly, to reduce, in the manner directed by the Company, the remaining installments of such outstanding principal installments amounts of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so deliveredLoans and, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(c)thereafter, subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) the excess, if any, of the proceeds of such cash proceeds in the case of such incurrence sale or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed disposition above $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property 9,000,000 shall be applied in accordance with clauses (f)(A) and (B) above, and (y) the first $19,000,000 of the proceeds of any sale or disposition of the Xxxxxxx Property shall be applied in prepayment, firstly, to reduce, in the manner directed by the Company, the remaining installments of such outstanding principal amounts of the Term Loans and, thereafter, an amount equal to the excess, if any, of the proceeds of such sale or disposition above $19,000,000 shall be applied in accordance with clauses (f)(A) and (B) above.
(g) If at any time the aggregate principal amount of US Revolving Credit Outstandings exceeds the US Maximum Credit at such time, the US Borrower shall forthwith prepay the Swing Loans first and then the US Revolving Loans then outstanding in an amount equal to such excess. If any such excess remains after repayment in full of the aggregate outstanding Swing Loans and US Revolving Loans, the US Borrower shall provide cash collateral for the Letter of Credit Obligations of the US Borrower in the manner set forth in Section 6.69.3 (ACTIONS IN RESPECT OF LETTERS OF CREDIT) to the extent required to eliminate such excess. No prepayment of the Term Loan Facility shall be required under this paragraph.
(h) If at any time the aggregate principal amount of Foreign Revolving Credit Outstandings exceeds the Foreign Maximum Credit at such time, the Foreign Borrowers shall forthwith prepay the Foreign Revolving Loans then outstanding in an amount equal to such excess. If any such excess remains after repayment in full of the aggregate outstanding Foreign Revolving Loans, the Foreign Borrowers shall provide cash collateral for the Letter of Credit Obligations of the Foreign Borrowers in the manner set forth in Section 9.3 (ACTIONS IN RESPECT OF LETTERS OF CREDIT) to the extent required to eliminate such excess.
(i) For the avoidance of doubt, the Loan Parties, the Lenders, the Issuers and the Administrative Agents agree that, although the Foreign Borrowers may do so at any time, at no time shall the Foreign Borrowers be required to provide guarantees or cash collateral against the US Revolving Credit Loans or the Term Loan, nor shall they be required to make any mandatory prepayments under this Section 2.9 for application against the US Revolving Credit Loans or the Term Loan, unless such prepayments can be made in a manner which will not cause the Company or any other Group Member to incur any material Tax liability; PROVIDED, HOWEVER, that the Company and all other Members of the Group shall use all reasonable efforts, including by way of making intercompany loans or repaying receivables to any of the US Borrower, the US Guarantors or any other Member of the Group in a manner that would not reasonably be expected to cause the Company or any other Member of the Group to incur any material Tax liability, in order to provide funds for the purpose of making such prepayment.
(j) Except during the continuance of an Event of Default (in which case Section 2.13(f) (PAYMENTS AND COMPUTATIONS) shall apply), all available funds in the Cash Concentration Account-US shall be applied on a daily basis:
(i) FIRST to repay the outstanding principal amount of the Swing Loans until such Swing Loans have been repaid in full;
(ii) SECOND, to repay the outstanding principal balance of the US Revolving Loans until such US Revolving Loans shall have been repaid in full; and
(iii) THIRD to any other Obligations (other than payments against the principal amounts of the Term Loan) then due and payable. The Domestic Administrative Agent agrees to apply such funds and the US Borrower consents to such application. If, following such application, there are no Loans outstanding and no other Obligations that are then due and payable (and all outstanding Letter of Credit Obligations have been cash collateralized at 105%), then the Domestic Administrative Agent shall cause any remaining funds in the Cash Concentration Account-US to be paid at the written direction of the US Borrower.
(k) Except during the continuance of an Event of Default (in which case Section 2.13(f) (PAYMENTS AND COMPUTATIONS) shall apply), all available funds in the Foreign Collection Accounts shall be applied on a daily basis:
(i) FIRST to repay the outstanding principal balance of the Foreign Revolving Loans until such Foreign Revolving Loans shall have been repaid in full; and
(ii) SECOND to any other Obligations of the Foreign Borrowers then due and payable. The Foreign Administrative Agent agrees to apply such funds and the Foreign Borrowers consent to such application. If, following such application, there are no Foreign Revolving Loans outstanding and no other Obligations of the Foreign Borrowers that are then due and payable (and all outstanding Letter of Credit Obligations have been cash collateralized at 105%), then the Foreign Administrative Agent shall cause any remaining funds in any Foreign Collection Account to be paid at the written direction of the Foreign Borrowers.
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Mandatory Prepayments. (a) When Subject to Section 4.3 hereof, when any Borrower Credit Party sells or otherwise disposes of any Collateral resulting in Net Disposition Proceeds in excess of $500,000 in the aggregate in any fiscal year, other than Inventory in the Ordinary Course of Business or Dispositions otherwise permitted under Section 7.1Business, Borrowers Borrower shall repay the Advances in an amount equal to the Net Disposition Proceeds of such saleCash Proceeds, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (i) if the Collateral disposed of is equipment the purchase of which was financed by an Equipment Loan, (x) first, to the outstanding principal installments of the Equipment Loans in the inverse order of the maturities thereof, (y) second, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, thereof and (yz) secondthird, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), ; provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ Borrower’s ability to re-borrow reborrow Revolving Advances in accordance with the terms hereof.
hereof or (bii) Notwithstanding if the foregoing, with respect to any Net Disposition Proceeds which would otherwise give rise to a prepayment under Section 2.20(a), so long Collateral disposed of is equipment other than as no Event of Default shall have occurred and be continuing and the Borrowing Agent shall have notified Agent within two (2) Business Days following receipt of such Net Disposition Proceeds of the applicable Loan Party’s or its Subsidiary’s election to reinvest all or any portion of such Net Disposition Proceeds set forth in fixed or capital assets or other assets useful to the business of the Loan Parties and their Subsidiaries, then such Net Disposition Proceeds shall be applied by Agent to the Revolving Advances and Agent shall implement a reserve equal to the amount of such Net Disposition Proceeds pursuant to Section 2.1(a)(y)(vi). Borrowers may request Revolving Advances in the amount of the Net Disposition Proceeds (or such portion thereof) to pay the actual cost of reinvestment and the reserve with respect to such amount shall be released and shall be available to Borrowers as a Revolving Advance, so long as (i) Borrowers have sufficient Undrawn Availability (after giving effect to the release of the reserve for such amount) to cause such Revolving Advances to be madeabove or other Collateral, (ii) all conditions to funding sent forth in Section 8.2 or 8.3 (as applicable) of this Agreement have been satisfied and (iii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not be deemed to be implied consent to any Disposition or other transaction prohibited by the terms and conditions of this Agreement or any Other Document.
(c) Borrowers shall prepay the outstanding amount of the Term Loans in an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2022, payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than one hundred twenty (120) days after the end of each such fiscal year, which amount shall be applied to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof. In the event that the financial statements are not so delivered, then a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required by this Section 2.20(cx), subject to adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statements.
(d) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by Borrowers, Borrowers shall, no later than three (3) Business Days after the receipt by Borrowers of the cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100.00%) of such cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and thereof, (y) second, to the outstanding principal installments of the Equipment Loans in the inverse order of the maturities thereof and (z) third, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), ; provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine determine, subject to Borrowers’ Borrower’s ability to reborrow Revolving Advances in accordance with the terms hereof.
(e) Other than pursuant to any issuance of Equity Interests of Borrowers (i) contemplated by Section 6.5(d), (ii) used to fund Capital Expenditures not to exceed $4,000,000 per fiscal year or (iii) used to fund Permitted Acquisitions, Borrowers shall provide Agent within ten (10) days’ written notice of such issuance of Equity Interests, and Agent in its sole discretion, within such ten (10) day period, may request an appraisal of Equipment and Real Property to determine if the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount at the time of such issuance of Equity Interests. If Agent does not order an appraisal of the Equipment and Real Property, then one hundred percent (100.00%) of the net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the Term Loan Collateral Amount exceeds the then outstanding balance of the Term Loan, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied to the Revolving Advances. If Agent orders an appraisal of the Equipment and Real Property and the then outstanding balance of the Term Loan exceeds the Term Loan Collateral Amount, then one hundred percent (100.00%) of such net cash proceeds received from the issuance of Equity Interests shall be applied (x) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof until the outstanding balance of the Term Loan is equal to the Term Loan Collateral Amount and (y) second, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(f) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 6.6.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Perma Fix Environmental Services Inc)
